J. S27004/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
KEITH EPPS,                               :          No. 1223 EDA 2014
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, December 1, 2011,
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos. CP-51-CR-0012195-2009,
               CP-51-CR-0012200-2009, CP-51-CR-0012204-2009


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 24, 2015

        Keith Epps appeals from the judgment of sentence of December 1,

2011, following his conviction of two counts of second-degree murder and

robbery, one count of burglary, and three counts of criminal conspiracy. 1

After careful review, we vacate two of his convictions for criminal conspiracy,

but affirm in all other respects.

        The trial court has summarized the facts of this case as follows:

                    This matter arises out of the shooting deaths
              of Rian Thal and Timothy Gilmore, the victims herein
              on June 27, 2009, during a robbery inside of the
              Piazza Navona apartments located in the Northern
              Liberties section of Philadelphia.    The evidence



* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(b), 3701, 3502, and 903, respectively.
J. S27004/15


          demonstrated [t]hat defendant orchestrated the plan
          to rob the victims herein.

                Rian Thal was a party promoter [and] also was
          involved in the selling of powder cocaine. She was
          specifically targeted because word had gotten out
          that she was to receive a shipment of approximately
          one half million dollars’ worth of powder cocaine,
          which amounted to eleven or twelve kilos of powder
          cocaine, which was being transported from Texas to
          Philadelphia.[Footnote 2] The two drug couriers,
          Timothy Gilmore and Edward Emerson,[Footnote 3]
          transported the drugs by way of a tractor-trailer to
          Philadelphia.

               [Footnote 2] Rian Thal’s business
               partner, Leon Woodard, was responsible
               for setting up the deal with a Texas
               dealer, Kevin Harks, a/k/a Big Bank
               Hank, who was interested in breaking
               into the Philadelphia market to sell
               Mexican cocaine.          Mr. Woodard is
               currently serving 262 months in federal
               prison for drug trafficking.

               [Footnote 3] Mr. Emerson received
               thirty-six months in federal prison for the
               charge of drug trafficking.

                 On    the   Friday     before   the   murders,
          Leon Woodard moved the cocaine into Ms. Thal’s
          apartment on the seventh floor of the Piazza
          Navona. Accompanying Mr. Woodard was a man
          named Vernon Williams, who Ms. Thal did not permit
          into her apartment because she did not trust
          him.[Footnote 4] At trial, Mr. Woodard testified at
          trial [sic] that Mr. Williams left his cell phone in
          Mr. Woodard’s vehicle. After the murders occurred,
          Mr. Woodard      saw     text    messages     between
          Mr. Williams and Antonio Wright that indicated
          Mr. Woodard was being set up.[Footnote 5]
          Unbeknownst      to    Ms. Thal     or   Mr. Woodard,
          Mr. Williams contacted defendant about the shipment



                                  -2-
J. S27004/15


          of cocaine and the drug money tied to its purchase
          and a plan was hatched to steal it.

               [Footnote 4] Mr. Williams died in a car
               accident a month after the murders
               occurred.

               [Footnote   5]    Cell   phone    records
               confirmed that Wright sent a text
               message    to     Mr. Williams    saying,
               “Yo, dawg, we need this. This is a big
               one. We can’t let this one get by us.”

                Defendant thereafter contacted a friend named
          Katoya Jones, who lived in the building, and asked
          her to help him enter the apartment in exchange for
          a cut of the profits should the robbery scheme
          succeed.[Footnote 6] Approximately 3:30 a.m., that
          Saturday, the 27th, the day of the murders,
          defendant called Ms. Jones to let him and his friend,
          Robert Keith, into the building. After they entered
          the building, their attempt to steal the drugs and
          money failed because they broke into the wrong
          apartment.

               [Footnote 6] The building required both a
               key and security code to enter.

                Instead of taking that as a sign that the
          scheme would go awry, the next afternoon, at about
          2:00 p.m., defendant called Ms. Jones again to tell
          her to allow a friend of his into the building within
          the next hour. Defendant conspired with three men,
          Donnell Murchison, Langdon Scott[Footnote 7], and
          Edward Daniels to carry out the robbery. Around
          3:00 p.m., that same day, Ms. Jones opened the
          locked front door to the apartment building to allow
          Murchison to enter. Mr. Murchison then opened the
          door for Daniels and Mr. Scott. Mr. Scott was under
          the impression that he was buying $4,500 worth of
          powder cocaine.

               [Footnote 7] Mr. Scott was permitted to
               enter an open guilty [plea] to the


                                  -3-
J. S27004/15


                charges of robbery, conspiracy, and
                burglary in exchange for his testimony.

                According to [Mr.] Scott’s testimony, once all
          three men were in the elevator,[Footnote 8]
          Murchison informed Mr. Scott that when he went to
          buy the drugs from Mr. Gilmore and Ms. Thal, he and
          Daniels were going to rob them. At that point,
          Mr. Scott decided not to go through with the buy and
          all three of them left the apartment building to
          report back to defendant, who was sitting in a white
          van outside of the apartment building.          While
          Murchison waited outside of the van, Mr. Scott and
          Mr. Daniels entered the van to talk with defendant.

                [Footnote 8] The three men entered the
                building once before to carry out the
                plan, but after Murchison learned that
                Scott did not have the purchase money
                on him all three men left the building so
                that Scott could retrieve the money.

                After Scott stated that he wanted no part of
          the    robbery,     a    friend   of   defendant’s,
          Caesar Holloway, told him that he would take Scott
          home and get a replacement, who turned out to be
          Antonio Wright.       Around 5:00 p.m., Daniels,
          Mr. Murchison, and Wright entered the Piazza
          Navona and proceeded to the seventh floor to wait
          for Ms. Thal and Mr. Gilmore to return. Wright and
          Daniels went to one end of the hallway while
          Murchison went to the other in order to box in the
          victims. Defendant called Mr. Murchison as the two
          entered the apartment building.

                When Ms. Thal and Mr. Gilmore exited the
          elevator, Wright and his co-defendants pulled out
          guns and announced a robbery. When Mr. Gilmore
          resisted, Wright shot him.      Murchison then shot
          Ms. Thal behind the head killing her instantly. As the
          three men exited the building, Murchison noticed
          that Gilmore was still alive and shot him twice in the
          head killing him.     All of the men then entered
          defendant’s van and then fled the scene without the


                                  -4-
J. S27004/15


          money or the drugs. Police later discovered four
          kilos of cocaine and over $100,000 in Ms. Thal’s
          apartment.

                 Later that evening police identified Ms. Jones
          as a person of interest because she was observed on
          a surveillance video twice opening the front door of
          the apartment building for Murchison.        Initially,
          Ms. Jones lied to police about being involved in the
          incident and was freed. However, police picked her
          up again once police reviewed another surveillance
          video, which showed her letting Robert Keith into the
          building. Upon being taken into custody, Ms. Jones
          gave a statement to the detectives and later pleaded
          guilty to two counts of third-degree murder, one
          count of conspiracy, two counts of robbery in the
          first-degree, and one count of burglary.

                 Police used Ms. Jones’ cell phone records and
          learned that she and defendant had been in contact
          with one another. After police obtained defendant’s
          cell phone records, the detectives found numerous
          phone calls to the individuals involved: defendant,
          Scott,    Murchison,    Holloway,    and   Ms. Jones.
          According to Detective Ron Dove of the Homicide
          Unit, on the day of the murders, June 27th of 2009,
          Holloway and defendant communicated with each
          other 53 times, Williams and defendant 34 times,
          Robert Keith and defendant 52 times, Ms. Jones and
          defendant 29 times, Scott and defendant 11 times,
          Daniels and defendant 4 times, and Murchison and
          defendant thirty-six times.[Footnote 9]

                [Footnote 9] The phone calls mentioned
                above were obtained from Mr. Epps’
                phone number, (215) 207-4472. Special
                Agent William Shute of the FBI was able
                to determine using cell tower sites and
                video surveillance tapes, that Mr. Epps
                made and received 57 phone calls while
                in the Piazza Navona on the day of the
                murders.




                                   -5-
J. S27004/15


                  Ballistic tests revealed that the bullets
            recovered from Mr. Gilmore and Ms. Thal belonged to
            the weapon used by Murchison. After police arrested
            Daniels he confessed to being involved in the
            incident. He also admitted shooting Gilmore multiple
            times. He did not mention anyone else involved in
            the murders.

                  During trial, surveillance tapes shown to Scott
            allowed him to identify Murchison and Daniels as the
            men with whom he entered the building.          After
            giving testimony at a preliminary hearing, Mr. Scott
            was stabbed numerous times in prison.[Footnote 10]

                  [Footnote     10]   Mr. Scott’s stabbing
                  occurred the day he was moved to the
                  cell block holding Mr. Daniels.

                  In addition thereto, at trial Mr. Woodard and
            Ms. Jones identified defendant in a surveillance
            video. Testimony from Mr. Murchison was stricken
            from the record after he refused to undergo cross-
            examination.[Footnote 11]

                  [Footnote 11] Mr. Murchison pled guilty
                  to two counts of first-degree murder, two
                  counts of robbery, and one count of
                  conspiracy. In return for his plea, the
                  Commonwealth agreed to place him in
                  federal custody for his safety. During his
                  direct testimony, the Commonwealth
                  read in statements he gave to detectives,
                  which implicated the defendant and
                  co-defendants as those men that took
                  part in the robbery-turned-murder.
                  (N.T. 11/18/2011, 32[,] 37-45, 47, 53,
                  56-57.)

Trial court opinion, 7/30/12 at 2-5.

      On December 1, 2011, following a jury trial, appellant was found guilty

of two counts each of second-degree murder and robbery.        Appellant was



                                       -6-
J. S27004/15


also found guilty of one count of burglary and three counts of criminal

conspiracy    relating   to   the   murders,   robberies,   and   burglary.   On

December 1, 2011, appellant was sentenced to consecutive life terms for

second-degree murder.         Appellant received concurrent sentences on the

burglary and conspiracy charges; the robbery charges merged for sentencing

purposes.     (Notes of testimony, 12/1/11 at 18-20.)         This timely appeal

followed.    Appellant filed a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. Rule 1925(b), 42 Pa.C.S.A., and the trial court

has filed an opinion.

      Appellant has raised the following issues for our review:

             I.     After prosecution witness Donnell Murchison
                    refused to undergo full and complete cross
                    examination, did the Trial Court err in denying
                    Appellant’s motion for mistrial, and in
                    concluding that Appellant’s Sixth Amendment
                    rights were sufficiently vindicated by striking
                    the witness’ testimony and issuing a curative
                    instruction?

             II.    In     light   of   Mr. Murchison’s     obviously
                    anticipated reluctance to testify, was it error to
                    fail to first question the witness outside the
                    presence of the jury?

             III.   Did the Trial Court err in overruling objection
                    to the prosecution’s repetitive and leading
                    questions of Donnell Murchison to the effect
                    that he and his family had been threatened,
                    where no such threats had been connected to
                    Appellant?

             IV.    Did the Trial Court err by denying Appellant’s
                    motion for mistrial following prosecutorial
                    misconduct    during    the  Commonwealth’s


                                       -7-
J. S27004/15


                    summation, including (a) repeated references
                    to the stabbing of Langdon Scott which had
                    been     ruled   inadmissible;    (b)   blatant
                    mischaracterization of the testimony of
                    Officer Vincent DeMayo, and (c) statements
                    dehors the record concerning what was
                    allegedly done by police with the phone
                    allegedly belonging to Vernon Williams?

              V.    Did the Trial Court err in permitting
                    Detective John Cummings to testify as to the
                    hearsay statement of Antoine Thomas, when
                    defense counsel had not attacked the
                    adequacy of the investigation by the police?

              VI.   Did the Trial Court violate double jeopardy
                    principles by sentencing Appellant on three
                    separate counts of criminal conspiracy, where
                    the Commonwealth’s proofs alleged only a
                    single, overarching conspiratorial agreement to
                    steal certain money and drugs?

Appellant’s brief at 3-4.

        In his first issue for our review, appellant claims that the trial court

erred by not declaring a mistrial after Donnell Murchison refused to undergo

cross-examination.      In exchange for his testimony at trial, Murchison

negotiated a plea with the Commonwealth. (Notes of testimony, 11/18/11

at 3-4.)    However, Murchison was clearly a reluctant witness.       While he

agreed that his prior statement to police was true, he repeatedly expressed

his reluctance to testify.    Eventually, Murchison shut down and basically

refused to answer any more questions on cross-examination. (Id. at 121-

122.)




                                      -8-
J. S27004/15


      The trial court denied appellant’s motion for mistrial but gave the jury

a curative instruction and struck Murchison’s testimony in its entirety:

            A couple things, first of all, the delay was we had a
            witness on the witness stand Friday and we had
            difficulty getting him in today which is logistics and
            we finally did get him in and you observed on Friday
            the fact that he did not answer questions, the
            majority of the questions. He had some difficulty
            with the Commonwealth’s questions and he did not
            answer a majority of Mr. Warren’s questions and as
            such, he did not sit for cross-examination, so I am
            striking his testimony. Now, what that means is you
            have to strike him from your memory bank as if this
            witness didn’t testify. The fact that he testified to
            giving a statement, you strike that out. The fact that
            he testified to certain portions of that statement or
            the majority of the statement or the whole
            statement, you strike it out. You are not to consider
            that when you go back to deliberate. You are not to
            consider anything about him. The witness’ testimony
            has been stricken and I can’t emphasize that
            enough.      It is something that under the law,
            someone has to sit for cross-examination and I have
            made the determination this witness will not sit for
            cross-examination and as such, the testimony, it is
            as if it never happened. Just put it right out of your
            minds and we will move on from there.

Notes of testimony, 11/21/11 at 24-26.

            With regard to the denial of mistrials, the following
            standards govern our review:

                  In criminal trials, the declaration of a
                  mistrial serves to eliminate the negative
                  effect wrought upon a defendant when
                  prejudicial elements are injected into the
                  case or otherwise discovered at trial. By
                  nullifying the tainted process of the
                  former trial and allowing a new trial to
                  convene, declaration of a mistrial serves
                  not only the defendant’s interests but,


                                     -9-
J. S27004/15


                  equally important, the public’s interest in
                  fair trials designed to end in just
                  judgments. Accordingly, the trial court is
                  vested with discretion to grant a mistrial
                  whenever the alleged prejudicial event
                  may reasonably be said to deprive the
                  defendant of a fair and impartial trial. In
                  making its determination, the court must
                  discern     whether      misconduct      or
                  prejudicial error actually occurred, and if
                  so, . . . assess the degree of any
                  resulting prejudice. Our review of the
                  resulting    order   is   constrained    to
                  determining whether the court abused its
                  discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy

of a mistrial is an extreme remedy required ‘only when an incident is of such

a nature that its unavoidable effect is to deprive the appellant of a fair and

impartial tribunal.’” Id. at 878 (citations omitted).

      “In conducting a criminal trial, the court must protect the rights of the

accused under the Sixth Amendment, including the right ‘to be confronted

with witnesses against him.’”    United States v. Morgan, 757 F.2d 1074,

1076 (10th Cir. 1985). “[T]he defendant must be provided with an adequate

opportunity to fully and fairly cross-examine the witnesses against him.”

Id., citing California v. Green, 399 U.S. 149 (1970).           “[T]he right of

confrontation includes the right of the accused to use cross-examination to

present a defense to the charges against him.” Morgan, 757 F.2d at 1076

(citation omitted).



                                     - 10 -
J. S27004/15


      In this case, Murchison refused to be cross-examined so the trial court

struck his testimony, in its entirety, and cautioned the jury. This was well

within the trial court’s discretion. See id. at 1077, citing United States v.

Nunez, 668 F.2d 1116, 1121 (10th Cir. 1981) (“The usual remedy when a

government witness invokes the Fifth Amendment on cross-examination on

matters to which the witness testifies on direct examination is to strike the

witness’ direct testimony.”). See also United States v. McGlory, 968 F.2d

309, 344 (3d Cir. 1992), cert. denied, 507 U.S. 962 (1993) (“Courts often

prevent an emasculation of the confrontation right by striking the testimony

of a non-respondent witness.     Use of this remedy lies within the district

court’s discretion.”) (citations omitted).   When the trial court provides

cautionary instructions to the jury in the event the defense raises a motion

for mistrial, “[t]he law presumes that the jury will follow the instructions of

the court.”    Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001)

(citation omitted), cert. denied, 537 U.S. 1187 (2003).

      Furthermore, we agree with the trial court that there was ample

evidence introduced by the Commonwealth, apart from Murchison’s stricken

testimony, that established appellant’s participation in the crimes, including

evidence of numerous telephone calls between appellant and other members

of the conspiracy. (Trial court opinion, 7/30/12 at 9.) Therefore, the trial

court did not abuse its discretion in denying appellant’s motion for mistrial

and instead striking Murchison’s testimony and giving a curative instruction



                                    - 11 -
J. S27004/15


to the jury.     McGlory, 968 F.2d at 344 (“Prejudicial testimony will not

mandate a mistrial when there is other significant evidence of guilt which

reduces the likelihood that the otherwise improper testimony had a

substantial impact upon the verdict of the jury.”), quoting United States v.

Rodriquez-Arevalo, 734 F.2d 612, 615 (11th Cir. 1984).

       We also note that Murchison was not a co-defendant.                    Therefore,

Bruton v. United States, 391 U.S. 123 (1968), upon which appellant

relies, is inapposite.     Bruton involved the admission of a co-defendant’s

confession that also implicated the non-testifying defendant.

       In his second issue on appeal, appellant claims that the trial court

erred when it did not conduct an in camera examination of Murchison prior

to    his   taking   the   stand   and     subsequent    refusal   to   testify.      The

Commonwealth called Murchison to testify against appellant and his two

co-defendants, Wright and Daniels.           (Notes of testimony, 11/18/11 at 2.)

Throughout       direct     examination       and      even    more      so        through

cross-examination, Murchison indicated that he refused to testify, invoking

his    Fifth   Amendment      privileges     against    self-incrimination.         During

cross-examination, the trial court excused Murchison from the witness stand,

and provided a curative instruction to the jury.           (See notes of testimony,

11/21/11 at 24-26.)

       Our supreme court has stated that “it is prejudicial error for a

prosecutor to summon a witness to the stand in a criminal trial with



                                         - 12 -
J. S27004/15


foreknowledge that the witness intends to invoke a privilege against

self-incrimination.” Commonwealth v. DuVal, 307 A.2d 229, 231-232 (Pa.

1973) (emphasis added).        When a court is determining whether or not

prosecutorial misconduct took place, the credibility determinations of the

fact-finder are binding on an appellate court.     Commonwealth v. White,

734 A.2d 374, 381 (Pa. 1999) (stating that in the past, our supreme court

has held that there is no justification for appellate courts to review a fact

finder’s first-hand credibility determination relying “solely upon a cold

record”).

        In the instant case, the trial court held a hearing to determine if the

Commonwealth called Murchison to the stand with the prior knowledge that

he was intending to invoke his Fifth Amendment privileges.              At the

conclusion of the hearing, the trial court made the following determination

as to the Commonwealth’s credibility:

                    As to credibility, I believe Mr. Vega[2] when he
              says he did not put the witness up knowing that he
              was going to clam up on cross-examination and be
              the reluctant witness which he was on the witness
              stand.

                   Based on the argument I heard, based on my
              observation of Mr. Murchison and the agreement
              between the Commonwealth and the witness,
              Mr. Murchison, the motion for mistrial is denied.

Notes of testimony, 11/23/11 at 164.



2
    Philadelphia County Assistant District Attorney Carlos Vega, Esq.


                                      - 13 -
J. S27004/15


        In his third issue for our review, appellant claims that the trial court

erred    by    failing   to   sustain   defense   counsel’s   objections   to   the

Commonwealth’s leading questions during Murchison’s direct examination.

As we just discussed, Murchison’s testimony was stricken in its entirety and

the jury is presumed to follow the instructions of the court. Moreover, as we

also just noted, the remaining evidence against appellant was overwhelming.

We see no prejudice to appellant on this issue, and we find no error by the

trial court.

        For his fourth issue, appellant claims that the trial court erred when it

denied appellant’s motion for a mistrial for prosecutorial misconduct during

the Commonwealth’s summation. When reviewing a claim of prosecutorial

misconduct, we use the following standard of review:

                      Our standard of review for a claim of
               prosecutorial misconduct is limited to whether the
               trial court abused its discretion. In considering this
               claim, our attention is focused on whether the
               defendant was deprived of a fair trial, not a perfect
               one.      Not every inappropriate remark by a
               prosecutor    constitutes    reversible error.      A
               prosecutor’s statements to a jury do not occur in a
               vacuum, and we must view them in context. Even if
               the prosecutor’s arguments are improper, they
               generally will not form the basis for a new trial
               unless the comments unavoidably prejudiced the
               jury and prevented a true verdict.

Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012)

(en banc); appeal denied, 57 A.3d 65 (Pa. 2012) (citations omitted). See

also Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005)



                                        - 14 -
J. S27004/15


(prosecutorial misconduct does not occur unless the jurors form a fixed bias

and hostility toward the defendant based on the prosecutor’s comments).

When specifically considering a prosecutor’s comments to a jury during

closing arguments, this court has stated, “It is well settled that a prosecutor

has considerable latitude during closing arguments and his arguments are

fair if they are supported by the evidence or use inferences that can

reasonably be derived from the evidence.”     Commonwealth v. Caldwell,

117 A.3d 763, 774 (Pa.Super. 2015) (en banc) (citations omitted).         This

court further stated that any taint from a prosecutor’s improper statements

may be cured by a curative instruction to the jury, and that courts are

compelled to consider “all surrounding circumstances before finding that

curative instructions [are] insufficient and the extreme remedy of a mistrial

is required.” Id. (citations omitted). A jury is presumed to have followed

any instructions provided by the trial court. Commonwealth v. Elliott, 80

A.3d 415, 445 (Pa. 2013), citing Commonwealth v. DeJesus, 860 A.2d

102, 111 (Pa. 2004).

      Appellant alleges that the Commonwealth engaged in misconduct on

three occasions during closing arguments:        referencing the stabbing of

Langdon Scott, mischaracterization of Officer DeMayo’s testimony, and

statements about the handling of the cell phone allegedly belonging to

Vernon Williams. (See appellant’s brief at 48-52.) Specifically, on all three

occasions defense counsel objected, indicating that the Commonwealth had



                                    - 15 -
J. S27004/15


alluded to facts that were either “not testified to,” or facts for which “there

was no evidence.”    (Notes of testimony, 11/29/11 at 158-159, 169, 176-

177.) The trial court overruled all three objections, stating that the jury’s

recollection controls. (Id.) For the purposes of our review, we shall address

the allegations separately.

      First, defense counsel objected during the Commonwealth’s closing

argument when the prosecutor made references to the stabbing of Langdon

Scott. (Id. at 174.) Specifically, the Commonwealth alluded to “courage”

shown by Scott through his testimony after allegedly being stabbed. (Id. at

174.) After considering defense counsel’s objection, the trial court offered a

curative instruction to the jury clarifying that “[t]here was no evidence

presented that any of these three Defendants had any involvement at all in

that stabbing and [the jury] must not draw an inference from the argument

that they did.” (Id. at 181.)

      We find that this statement did not have any prejudicial effect on the

jury that would warrant granting defense counsel’s motion for a mistrial.

During closing arguments, the Commonwealth only made reference to the

allegation that Scott was stabbed,3 but at no point did the prosecutor, either

directly or indirectly, intimate that appellant was responsible. Moreover, the

trial court provided the jury with a curative instruction, telling them to


3
  The trial court refused to allow testimony regarding Scott being the victim
of a stabbing due to lack of evidence. (Notes of testimony, 11/16/11 at
105.)


                                    - 16 -
J. S27004/15


disregard any references to Scott’s stabbing. Since the jury is presumed to

have followed the trial court’s instruction, appellant has not demonstrated

how he was prejudiced by the Commonwealth’s reference to Scott’s stabbing

during closing arguments.

      Second, appellant objected to the Commonwealth’s references to

Officer DeMayo’s testimony.         Specifically, appellant alleges that the

Commonwealth blatantly misstated Officer DeMayo’s testimony in regards to

where keys to Thal’s apartment were located. (Appellant’s brief at 50.) At

the   time   Officer   DeMayo’s   testimony   was   referenced   during   closing

arguments, defense counsel’s objection was overruled by the trial court.

(Notes of testimony, 11/29/11 at 159.)        Third, defense counsel raised an

objection during closing arguments to the Commonwealth’s statements

regarding the police’s processing of the cell phone that was brought to police

by Woodward’s wife, which was overruled by the trial court.         (Appellant’s

brief at 51; notes of testimony, 11/29/11 at 169.) The trial court reiterated

its rulings on defense counsel’s objections the following day prior to final

jury instructions, stating that while defense counsel had made an objection

for the record, the Commonwealth’s statements were a matter of argument

and not evidence, therefore the jury’s recollection is “what counts.” (Notes

of testimony, 11/30/11 at 12.)




                                     - 17 -
J. S27004/15


        We therefore find that appellant does not demonstrate that the jury

formed a fixed bias or prejudice toward him as contemplated by our

supreme court in Robinson.

        In his fifth issue for our review, appellant claims that the trial court

erred by allowing Detective John Cummings to testify as to hearsay

statements from Antoine Thomas.4               Specifically, Detective Cummings

testified regarding an interview that the police conducted with Thomas on

July 17, 2009.

        Hearsay is defined as an out-of-court statement made for the truth of

the matter asserted.     Pa.R.E. 801(c).    Our supreme court has stated that

certain statements, which would otherwise be subject to the rule against

hearsay,5 are admissible if the statements are not offered for the truth of the

matter asserted, but rather are admitted to explain a course of police

conduct.     Commonwealth v. Jones, 658 A.2d 746, 751 (Pa. 1995)

(citations omitted), see also Commonwealth v. Chmiel, 889 A.2d 501,

532-533      (Pa.   2005)   (requiring     the   trial   court   to      balance   the

Commonwealth’s need for the statements and any prejudice arising from the

statements     while   exercising   discretion    regarding      their    admission),

cert denied, 549 U.S. 848 (2006). Our supreme court cautions, however,


4
  Antoine Thomas was the person who appeared on the surveillance tape at
the Piazza Navona that defense counsel referenced during opening
statements. (See Notes of testimony, 11/15/11 at 198.)
5
    See Pa.R.E. 802.


                                      - 18 -
J. S27004/15


that   not    every    out-of-court    statement         describing     police   conduct      is

admissible; statements that could be considered by a jury to be substantive

evidence of a defendant’s guilt could be inadmissible. Commonwealth v.

Palsa, 555 A.2d 808, 810 (Pa. 1989); see also Commonwealth v.

Mosley, 114 A.3d 1072, 1078-1079 (Pa.Super. 2015).

       Appellant      claims   that   as   a    result    of   the    trial   court    allowing

Detective Cummings to testify regarding statements made by Thomas,

appellant’s    cross-examination       rights    were      “destroyed,”       and     that   the

statements were highly prejudicial. (Appellant’s brief at 56.) These claims

are without merit because defense counsel, in his opening statement at trial,

called police investigative tactics into question, claiming that the police had

failed to fully investigate everyone who appeared on surveillance tapes at

the time of the incident. (Notes of testimony, 11/14/11 at 66-67.)

       This assertion opened the door for Detective Cummings’s testimony

regarding the police’s investigation.               Specifically, Detective Cummings

testified that Thomas, the man in the blue hoodie to whom defense counsel

had alluded in opening statements, had been interviewed by the police, and

the police determined that he was not involved in the deaths of Thal and

Gilmore. (Notes of testimony, 11/15/11 at 198, 202.) Therefore, we find

that Detective Cummings’s testimony regarding Thomas’ statements were

not introduced for the truth of the matter asserted; rather, they were




                                           - 19 -
J. S27004/15


introduced to establish police conduct, which is not subject to the rule

against hearsay.

      Finally, in his sixth issue, appellant argues that he could not be

convicted and sentenced on three separate counts of criminal conspiracy

where the Commonwealth only proved a single, overarching conspiratorial

agreement. The Commonwealth concedes the point and agrees that two of

the convictions for criminal conspiracy must be vacated. (Commonwealth’s

brief at 34-35.)

      “A claim that the trial court imposed an illegal sentence by failing to

merge sentences is a question of law. Accordingly, our standard of review is

plenary.”   Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa.Super.

2005), quoting Duffy, 832 A.2d 1132, 1137 (Pa.Super. 2003).

            Our Courts have long held that where a defendant
            commits multiple distinct criminal acts, concepts of
            merger do not apply.            Commonwealth v.
            Anderson,       650    A.2d     20     (Pa.    1994);
            [Commonwealth v. Johnson, 874 A.2d 66, 70
            (Pa.Super 2005), appeal denied, 899 A.2d 1122
            (Pa. 2006)]; see also 42 Pa.C.S.A. § 9765 (“no
            crimes shall merge for sentencing purposes unless
            the crimes arise from a single criminal act and all
            of the statutory elements of one offense are included
            in the statutory elements of the other offense.”)

Commonwealth       v.   Robinson,   931      A.2d   15,   24   (Pa.Super.   2007)

(en banc) (emphasis in original).   See also Commonwealth v. Gatling,

807 A.2d 890, 899 (Pa. 2002) (plurality) (“The preliminary consideration is

whether the facts on which both offenses are charged constitute one solitary



                                    - 20 -
J. S27004/15


criminal act. If the offenses stem from two different criminal acts, merger

analysis is not required. If, however, the event constitutes a single criminal

act, a court must then determine whether or not the two convictions should

merge.”).

            In determining whether a single conspiracy or
            multiple conspiracies have been established, we
            must consider several relevant factors: The factors
            most commonly considered in a totality of the
            circumstances analysis of the single vs. multiple
            conspiracies issue . . . are: the number of overt acts
            in common; the overlap of personnel; the time
            period during which the alleged acts took place; the
            similarity in methods of operation; the locations in
            which the alleged acts took place; the extent to
            which the purported conspiracies share a common
            objective; and, the degree to which interdependence
            is needed for the overall operation to succeed.

Commonwealth v. Barnes, 871 A.2d 812, 820 (Pa.Super. 2005),

affirmed, 924 A.2d 1202 (Pa. 2007) (citations omitted).

      Appellant was convicted of three counts of conspiracy: one for his

attempted robbery at 3:30 a.m. on May 27 in which appellant and Keith

broke in to the wrong apartment, and two separate conspiracies for robbing

Thal and Gilmore of drugs and money during which both victims were shot

and killed. The Commonwealth concedes that all three acts were part of one

overarching conspiracy, therefore, based on this concession, we vacate two

of the conspiracy convictions.6       Since appellant received concurrent


6
  The Commonwealth made this same concession as to co-defendants
Daniels and Wright. In resolving those appeals, we also vacated one of the
conspiracy convictions related to the Thal and Gilmore killings.


                                    - 21 -
J. S27004/15


sentences for the conspiracy convictions, the trial court’s overall sentencing

scheme remains intact and we will not remand for re-sentencing. Appellant

is serving two consecutive life sentences for murder.

      Appellant’s convictions of criminal conspiracy at Nos. CR-0012200-

2009 and CR-0012195-2009 are vacated. Judgment of sentence affirmed on

all other counts. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2015




                                     - 22 -
