J-S08020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA


                        v.

    DARION AKIER EADY,

                             Appellant                 No. 876 WDA 2017


         Appeal from the Judgment of Sentence entered May 23, 2017,
                 in the Court of Common Pleas of Erie County,
            Criminal Division, at No(s): CP-25-CR-0001496-2016.


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                             FILED MAY 09, 2018

        Darion Akier Eady appeals from the judgment of sentence entered after

a jury convicted him of third-degree murder, recklessly endangering another

person, possession of an instrument of crime, and firearms not to be carried

without a license.1 After careful review, we vacate all of his convictions except

for the firearm violation, and remand for resentencing on the charge of

firearms not to be carried without a license.

        Our independent review of the record, viewed in the light most favorable

to the Commonwealth, reveals the following: On July 24, 2015, a house party

took place at Brandy Kooker’s apartment, located at 230 West 29th Street in

Erie, Pennsylvania.      N.T., 1/31/17, at 36-37.   After the gathering grew to


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1   18 Pa.C.S.A. §§ 2502(c), 2705, 907(a), 6106(a)(1), respectively.

*Former Justice specially assigned to the Superior Court.
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approximately 100 people, Kooker’s boyfriend, Mario Sanders, decided to shut

the party down. Mr. Sanders testified that while attempting to make people

leave the premises, he noticed a group of five men standing around a car on

the corner.   One of the men was a young black male in a white t-shirt,

approximately 5’7” or 5’8” in height. The men were approximately thirty yards

away when Mr. Sanders observed what looked like a gun on the right hip of

the man in the white T-shirt. Immediately after he witnessed this, Mr. Sanders

approached the men, requested them to leave, and then went back inside

Kooker’s apartment. Shortly after returning to the apartment, Mr. Sanders

heard gunshots. He did not see who fired the gun. See N.T., 1/31/17, at 40-

46.

      Corporal Royce Smith, a training supervisor and SWAT officer with the

City of Erie Police Department, arrived at the 29th Street apartment after

receiving a shots fired call. Id. at 85. He observed the body of sixteen-year-

old Elijah Jackson in the backyard, along with two live rounds and one spent

shell casing near the body. Corporal Smith reported that Jackson was not

breathing when he arrived, and there was blood coming from the back of his

head. Id. at 88. Dr. Eric Vey, a forensic pathologist, testified that Jackson

died from a gunshot wound to the back of the head and was killed and

incapacitated immediately when a bullet severed his brain stem. Id. at 120.

      A security camera located at 231 Goodrich Street, which adjoins 230

West 29th Street, captured two men on surveillance footage. Id. at 98. The

police posted the footage on Facebook in an attempt to identify the two

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suspects. Mr. Sanders identified the person designated “Suspect #1” as the

person he witnessed with the gun on the night of July 24, 2017.         Various

tipsters identified Suspect #1 as Darion Eady and/or Chase Bucks. During an

interview with Captain Rick Lorah of the City of Erie Police Department, Eady

himself admitted that he was suspect #1 on the surveillance footage, that he

attended the party, and that he went by the nickname “Chase Bucks.” See

N.T., 1/31/17, at 70-77.

      In the surveillance footage, Suspect #2 and Eady appeared in the frame

together. N.T., 1/31/17, at 99.     Captain Lorah testified that it appeared

Suspect #2 had a gun in his right pocket. N.T., 2/1/17, at 42. The video did

not show that Eady was in possession of a firearm. Id. at 43. Suspect #2

then left the frame. After some lapse in time, Suspect #2 returned to the

video screen, and he appeared to no longer have the weapon. Id. at 42-43.

      Police Officer Joshua Allison, of the City of Erie Police Department,

discovered a .22 caliber Smith & Wesson handgun under a staircase landing

in the area where Eady and Suspect #2 were seen in the video. Id. at 99.

The staircase was located in the direction Suspect #2 travelled when he

walked out of the video surveillance coverage. Id. at 101.        The handgun

contained at least four sets of DNA, one of which was positively linked to Eady,

and one fingerprint that was determined not to belong to Eady. Id. at 14;

N.T., 1/31/17, at 156.

      Additionally, a second gun – a German Sport Gun – was recovered

several blocks away near 2912 Myrtle Street under a piece of plywood behind

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a shed. N.T., 1/31/17, at 156-157. This gun was also a .22 caliber. Id. at

158. At the scene, two live rounds, four spent shell casings, and one spent

round were recovered. Id. at 175-178. The two live rounds were .22 caliber.

Id. at 176.     Captain David Burlingame of the City of Erie Department,        a

firearm toll mark examiner, testified at trial that two of the spent shell casings

he examined were discharged from the Smith & Wesson pistol, and the

additional two spent shell casings were fired from the German Sport Gun. Id.

at 177-178.        Captain Burlingame could not determine which firearm

discharged the bullet that was retrieved from Elijah Jackson’s body, although

it too was a .22 caliber round. Id. at 175.

       Following the close of evidence and testimony, the jury convicted Eady

on the above-enumerated charges. On March 14, 2017, Eady filed a post-trial

motion, in which he sought a new trial due to juror misconduct. 2 The trial

court took testimony regarding this issue on two separate dates, and

subsequently denied the motion. On May 23, 2017, the trial court sentenced

Eady to an aggregate term of 23 years and 8 months to 47 years and 6 months

of incarceration, followed by 10 to 20 months of probation. This timely appeal

follows the denial of Eady’s post-sentence motion asking for a modification of


____________________________________________


2 After the trial, Eady claimed that his friend, Roshina Glover, overheard the
only African-American juror say she “grew up” “down the street from [the
victim’s] family,” that she “knew [his] family”, and that the victim “didn’t
deserve that.” Glover also stated that she saw the African-American juror and
the family of the victim give each other a “thumbs up gesture” on the way out
of the courthouse. Trial Court Opinion, 9/18/17, at 6.

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sentence, a new trial, and an arrest of judgment. Both Eady and the trial

court have complied with Pa.R.A.P. 1925.

      Eady raises two issues on appeal:

      1. Whether the Commonwealth failed to present sufficient
         evidence to prove [Eady’s] guilt beyond a reasonable doubt
         as to the convictions for murder of the third degree,
         recklessly endangering another person, possession of
         instruments of crime and firearms not to be carried without
         a license?

      2. Whether the trial court abused its discretion in denying
         [Eady’s] post-trial motion for a new trial?

Eady’s Brief at 3.

      First, Eady argues that there was insufficient evidence presented from

which the jury could conclude beyond a reasonable doubt that Eady fired the

gun responsible for killing Jackson. Eady contends that “the Commonwealth

failed to present one single shred of evidence that connected [Eady] with the

death of Elijah Jackson.” Eady’s Brief at 11. In his brief, Eady repeatedly

points to the trial court’s rationale for upholding the verdict which, he claims,

contains statements “totally contradicted by the record.” Eady’s Brief at 14.

We agree.

      In reviewing a challenge to the sufficiency of the evidence, we must

determine whether viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the   crimes   charged   was    established   beyond    a   reasonable    doubt.



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Commonwealth v. Lewis, 911 A.2d 558, 563-64 (Pa. Super. 2006). When

reviewing the evidence adduced at trial, the court may not weigh the evidence

and substitute its judgment for that of the fact-finder. Commonwealth v.

Derr, 841 A2d 558, 560 (Pa. Super. 2004). The fact-finder, 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. Commonwealth v. Hunzer,

868 A.2d 498, 505 (Pa. Super 2005).

      However, if the facts relied on by the fact-finder are so weak or

inconclusive that, as a matter of law, no probability of fact may be drawn from

the   circumstances,   then   the   conviction   in   question   cannot   stand.

Commonwealth v. Kim, 888 A.2d 847, 851-52 (Pa. Super. 2005) (citations

omitted). Stated differently, “[a]lthough the Commonwealth does not have

to establish guilt to a mathematical certainty and may in the proper case rely

wholly on circumstantial evidence, the conviction must be based on more than

mere suspicion or conjecture.” Commonwealth v. Thomas, 561 A.2d 699,

704 (Pa. 1989) (citations omitted).

      In this case, Eady challenges his conviction for third degree murder.

Third degree murder is defined as all other murders that are not first or second

degree murder:

         Third degree murder occurs when a person commits a killing
         which is neither intentional nor committed during the
         perpetration of a felony, but contains the requisite malice.
         Malice is not merely ill-will but, rather, wickedness of
         disposition,   hardness    of   heart,    recklessness    of
         consequences, and a mind regardless of social duty. Malice
         may be inferred from the use of a deadly weapon on a vital

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        part of the victim's body. Further, malice may be inferred
        after considering the totality of the circumstances.

Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013) (citation

omitted).

     The trial court provided the following rationale in support of Eady’s third-

degree murder conviction:

           [Eady] admitted attending the party and that he was
        suspect [#1] in the surveillance video. [Eady’s] conduct on
        the video evinced his criminal intent.       He is shown
        brandishing a handgun and appears to be stalking someone.
        He was holding the weapon consistent with a criminal intent
        to use it. He clearly was not engaged in any innocent
        endeavor. While [Eady] does not have the burden of proof,
        he did not proffer or argue to the jury any exculpatory
        explanation for his conduct on the video.

           The .22 caliber handgun linked to the gun that killed
        Jackson was found close to where [Eady] was seen in the
        video. Jackson’s body was in the driveway/backyard near
        where [Eady] is seen in the video armed and ready to fire.

           The Smith & Wesson gun found not far from the victim’s
        body had [Eady’s] fingerprint near the trigger and his DNA
        on it. The location of [Eady’s] fingerprint near the trigger
        created an inference [Eady] pulled the trigger. The gun was
        a black handgun consistent with what was seen on video.
        The handgun was .22 caliber and the bullet that killed the
        victim was a .22 caliber bullet. The spent .22 casings near
        the dead body were traced to the gun containing [Eady’s]
        fingerprint and DNA.

            [Eady] matched the description of the young man who
        had such a gun at the party as identified by Sanders. In a
        police interview, Kooker and Sanders identified the young
        man with a gun at the party as Chase Bucks from Facebook.
        Separately, [Eady] admitted Chase Bucks is his Facebook
        profile, that he was at the party, and he was suspect [#1]
        in the neighboring video.



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Trial Court Opinion, 9/18/17, at 9-10.

      If the record supported the facts as summarize by the trial court above,

we would agree that sufficient evidence existed to convict Eady of third-degree

murder.   However, the trial court’s version of the facts contained several

errors and omissions, which undermine its sufficiency analysis in this case.

First, the court stated, “The .22 caliber handgun linked to the gun that killed

Jackson was found close to where [Eady] was seen in the video.” Although a

gun was found in this location, the record showed that two guns were found,

and neither could be linked to the murder.       Second, the court stated that

Eady was seen in the video “armed and ready to fire.”         The video did not

show Eady to be armed; thus, Eady did not appear “ready to fire.”         To the

contrary, a second suspect, Suspect #2, was armed. The trial court never

mentioned that a second suspect was also in the video near the location where

the victim was found.     Third, the court stated that Eady’s fingerprint was

found near the trigger on the Smith and Wesson gun and that the location of

this fingerprint “created an inference [that Eady] pulled the trigger.” The

record revealed, however, that the only fingerprint recovered was determined

not to belong to Eady; thus, there can be no inference that Eady pulled the

trigger. Fourth, the court noted that Eady’s DNA was on this gun. Although

this was true, the trial court never mentioned that the DNA of three other

people was also found on this gun. Based on these numerous and significant

inconsistencies, we cannot accept the trial court’s rationale for concluding that

there was sufficient evidence to convict Eady on the charge of third-degree

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murder. Rather, after our own review of the record as cited above, we are

compelled to conclude that the Commonwealth did not establish its heavy

burden of “beyond a reasonable doubt” needed to sustain a conviction.

     In order for the jury in this case to have concluded that Eady was guilty

of third-degree murder, the jury would have had to determine that Eady was

the person who killed Jackson. Under the applicable standard of review, we

must leave issues of witness credibility to the jury.    See, Hunzer supra.

Following this principle, we must accept Mr. Sander’s testimony as fact.

However, his observation that Eady possessed a gun earlier that night is not

enough to sustain a conviction of third-degree murder.

     Our Supreme Court has held that a criminal defendant is entitled to

acquittal if the facts adduced against him are susceptible to more than one

reasonable interpretation. Commonwealth v. Woong Knee New, 47 A.2d

450, 455 (Pa. 1946) (citation omitted). In Woong Knee New, our Supreme

Court concluded that that the defendant had been erroneously convicted on

circumstantial evidence for criminal homicide.     The Court held that the

Commonwealth at most proved that the defendant had an opportunity to

commit murder, but it failed to prove that such opportunity was exclusively

that of the defendant’s, and that no one else could have committed the crime.

Id. at 467. In that case, all the circumstances the Commonwealth proved

were consistent with the theory that some unknown person committed the

murder. Id.




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     Similarly, in this case, it is entirely feasible that another person other

than Eady, fired the Smith and Wesson. Furthermore, it is also equally likely

that the German Sport Gun was the weapon responsible for killing Jackson.

              When two equally reasonable and mutually inconsistent
          inferences can be drawn from the same set of
          circumstances, a jury must not be permitted to guess which
          inference it will adopt, especially when one of the two
          guesses may result in depriving a defendant of his life or his
          liberty.

Commonwealth v. Hubbard, 372 A.2d 687, 692 (Pa. 1977). When there is

an equally likely possibility someone other than the defendant committed the

offense, the Commonwealth’s proof must sufficiently cast doubt on the

alternative scenario. Commonwealth v. Scott, 597 A.2d 1220, 1224 (Pa.

Super. 1991). The Commonwealth’s proof failed to do so in this case.

     Here, Mr. Sanders testified that he observed Eady in possession of a

handgun on the night to the party. Two weapons were fired that night, both

of which were .22 calibers – a Smith & Wesson and German Sport Gun. Spent

shell casings from both weapons were recovered from the scene. The .22

caliber bullet that killed Jackson was not traceable to either weapon.      In

addition, as we previously noted, Eady’s fingerprint was not found on the

Smith & Wesson. Although his DNA was found on the gun, three other sets

of DNA and one fingerprint, not belonging to Eady, were on the Smith &

Wesson.      As the Commonwealth’s DNA expert testified upon cross-

examination, despite the presence of Eady’s DNA on the gun, it could not be

determined when he handled it or how he did so; the presence of Eady’s DNA

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established only that at some unknown point in time, Eady had come into

contact with it. Finally, video surveillance showed Eady and Suspect #2 in the

alley behind 230 West 29th. Eady appeared to be unarmed while Suspect #2

appeared to have a gun in his pocket. Suspect #2 left the frame and then

returned without the weapon.

      Given this evidence, the circumstances the Commonwealth presented

to the jury legitimately and reasonably support the inference that Suspect #2

or some person, other than Eady, fired the .22 caliber handgun that killed

Jackson. In addition, it is equally reasonable to conclude that Jackson was

killed by a bullet fired from the German Sport Gun, which the record did not

link to Eady in any manner. The Commonwealth offered no proof sufficient to

cast doubt on these inferences. While the record permitted the suspicion that

Eady shot Jackson, we find the evidence was insufficient to support this

conclusion beyond a reasonable doubt. Short of that, a criminal conviction

cannot be upheld. Lewis, supra.

      Our analysis on the murder charge equally applies to the charges of

recklessly endangering another person, and possession of instruments of

crime. We apply the aforementioned reasoning to these charges. The trial

court’s conclusions that the Commonwealth met its evidentiary burden for

these offenses is valid only if the record evidence supported the court’s factual

summary as to third-degree murder. It did not. Thus, we likewise conclude

that the evidence introduced by the Commonwealth was insufficient to support

these convictions.

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      We reach a different conclusion with regard to Eady’s conviction for

firearms not to be carried without a license.     Pursuant to 18 Pa. C.S.A.

§6106(a)(1), a person is guilty of this offense if the Commonwealth shows

that he was in possession of a concealed firearm on his person, without a valid

license.   When viewing the evidence in the light most favorable to the

Commonwealth, the Commonwealth established that Eady, at some point

during the night of the incident, was in possession of a firearm. In addition,

the Commonwealth introduced evidence that Eady did not have a license to

carry a firearm.    Thus, the evidence presented by the Commonwealth

sufficiently established that Eady possessed a firearm without a valid license

on the night in question.

      In summary, we are compelled to conclude that the evidence presented

at trial, when carefully reviewed in its entirety, was too indeterminable to

support a guilty verdict for third degree murder, recklessly endangering

another person, and possession of instrument of a crime, and thus, was

insufficient as a matter of law. Having reached this conclusion, after careful

and meticulous review of the record, we find that the verdict of the jury was

based on speculation and conjecture and cannot stand. Woong Knee New,

supra. With respect for the conviction for the offense of firearms not to be

carried without a license, we affirm.

      We now turn to Eady’s claim that the trial court abused its discretion

when it denied his post-trial motion for a new trial due to juror misconduct.

Eady claimed that after the jury reached a verdict, his friend, Roshina Glover,

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discovered that one of the jurors had a prior relationship with Jackson’s family.

Eady alleges that the juror failed to disclose this preexisting relationship in

voir dire.

      The trial court granted Eady two days of hearings to explore the merits

of this claim.   At the hearing, when asked whether she knew the juror,

Jackson’s mother testified that she had never seen or interacted with the juror

before the trial and never lived down the block from her.          Other family

members of Jackson provided similar testimony.        The trial court ultimately

denied the motion, stating that “after careful review of Glover’s testimony and

a thorough analysis of the surrounding circumstances, this court does not find

Glover’s testimony credible given her bias and inconsistencies, the lack of any

corroboration, the physical evidence which contradicts her purported

observations and the rebuttal testimony from the victim’s family.” Trial Court

Opinion, 9/18/17, at 15. The trial court provided a detailed discussion of why

it did not believe the evidence of juror misconduct presented by Eady.

      A new trial should only be granted in instances of juror misconduct when

it is clear that improper conduct by a juror has occurred, and is evidenced by

competent testimony. Johnson v. Frazier, 787 A.2d 433, 436 (Pa. Super.

2001). The trial court’s determination that no juror misconduct occurred here

was based on credibility determinations and physical evidence presented at a

two-day evidentiary hearing. We cannot disturb this credibility determination,

when, as here, it is supported by the record. Commonwealth v. Wholaver,

177 A.3d 136, 180 (Pa. 2018).

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      Accordingly, the judgment of sentence for firearms not to be carried

without a license is affirmed; the judgment of sentence for third degree

murder, reckless endangerment, and possession of instruments of a crime are

vacated, and the case is remanded for resentencing. See Commonwealth

v. Goldhammer, 517 A.2d 1280, 1283 (stating generally if appellate court

upsets sentencing scheme, then remand for resentencing is warranted).

      Judgment of sentence affirmed in part and vacated in part.        Case

remanded for proceedings consistent with this memorandum.       Jurisdiction

relinquished.



      Judge Lazarus joins in this Memorandum.

      P.J.E. Stevens concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2018




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