The opinion
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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JESSE ENGRAM, : No. 128 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, February 10, 2011,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0015304-2008
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 28, 2015
Following a jury trial, appellant, Jesse Engram, was convicted of
first-degree murder and carrying a firearm. He now appeals the judgment of
sentence entered on February 10, 2011, in the Court of Common Pleas of
Allegheny County. We affirm.
The facts, as summarized by the trial court, are as follows.
On September 22, 2008, at approximately
10:40 P.M.[,] Korey Johnson drove into the Sunoco
gas station/convenience store located on
Penn Avenue in the Wilkinsburg section of Allegheny
County. Johnson was accompanied by his
girlfriend[,] Shermaine Campbell, who was seated in
the front passenger seat of Johnson’s vehicle.
Johnson was driving a rather distinctive purple GMC
with heavily tinted windows. He stopped his vehicle
at pump five with the driver’s side facing Penn
Avenue and Campbell’s side facing the store itself.
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As this was occurring[,] [appellant] walked
across Penn Avenue toward the gas pumps and
pulled the hood of his sweatshirt over his head.
[Appellant] pulled a pistol from underneath his
sweatshirt and walked directly to Johnson’s side of
the vehicle. [Appellant] fired once through the
driver’s side window, which was up. He followed
that initial shot with eight or nine more shots. The
window did not shatter, but instead collapsed as one
piece into the vehicle interior after the first shot.
After the second shot[,] Campbell opened her door
and crawled to the store to escape and request
assistance.
City of Pittsburgh police officer William Wagner
was working a plainclothes detail inside the
convenience store at the time and saw much of the
event unfold. Officer Wagner immediately emerged
from the store and pursued [appellant] as he fled
back across Penn Avenue and behind a building. The
foot pursuit ended abruptly when [appellant] “cut a
corner,” and fled down a side street out of
Officer Wagner’s sight.
[Appellant] had gotten to the vehicle before
Johnson could put it in “park,” and the vehicle drifted
into a gas pump, where it came to rest. Medics
arrived within minutes and attempted to keep
Johnson alive for transport and treatment, but he
was pronounced dead at the scene. Johnson was
shot five times, suffering fatal gun shot wounds to
the heart and lung. Ten 9mm casings were
recovered at the scene and it was determined that
the casings were discharged from the same firearm.
Campbell, visibly shaken and upset, spoke to
officers at the scene and stated that she “could not
believe they shot him,” and when asked specifically
who shot Johnson, she responded “LL” three times.
Campbell was taken to the homicide office where she
was formally interviewed and shown an eight person
photo array. She immediately identified [appellant]
as the shooter, writing on the array: “this is who I
know as LL, this is who shot Korey.”
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Trial court opinion, 7/17/14 at 7-9 (citations to the record omitted).
Appellant was charged with criminal homicide, firearms not to be
carried without a license, and possession of firearms prohibited; the charge
of possession of a firearm was severed prior to trial and later withdrawn. On
November 8, 2010, appellant proceeded to a jury trial before the Honorable
Edward J. Borkowski and was convicted of both counts. Appellant was
sentenced to life imprisonment and a consecutive period of two to four
years’ imprisonment. (Notes of testimony, 2/10/11 at 6, 9.)
On February 22, 2011, appellant filed a timely post-sentence motion,1
which was denied on April 26, 2011. On May 25, 2011, a timely notice of
appeal was filed. Judge Borkowski ordered appellant to file a concise
statement of errors complained of on appeal. Defense counsel failed to file a
statement, and on April 17, 2012, Christy P. Foreman, Esq., was appointed
for purposes of appeal. A Rule 1925(b) statement was filed, and the trial
court filed an opinion.
The following issues have been presented for our review.
I. WHETHER THE VERDICT IN THIS MATTER WAS
AGAINST THE WEIGHT OF THE EVIDENCE[?]
II. WHETHER THE VERDICT IN THIS MATTER WAS
LEGALLY INSUFFICIENT TO SUSTAIN A
1
The Pennsylvania Rules of Criminal Procedure provide that “a written
post-sentence motion shall be filed no later than 10 days after imposition of
sentence.” Pa.R.Crim.P. 720(A)(1). Instantly, the 10th day fell on Sunday,
February 20, 2011; and Monday, February 21, 2011, was a holiday. Thus,
appellant’s post-sentence motion was timely filed. See 1 Pa.C.S.A. § 1908.
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CONVICTION OF MURDER IN THE FIRST
DEGREE AND FIREARMS NOT TO BE CARRIED
WITHOUT A LICENSE[?]
III. WHETHER THE TRIAL COURT ERRED WHEN IT
ALLOWED SERGEANT [CHARLES]
HENDERSON[2] TO TESTIFY ABOUT
MS. CAMPBELL’S STATEMENTS TO THEM
UNDER THE EXCITED UTTERANCE EXCEPTION
TO THE HEARSAY RULE[?]
Appellant’s brief at 6.
We begin by reviewing appellant’s sufficiency claim. When
determining sufficiency of the evidence claims, we must determine whether
the evidence and all reasonable inferences therefrom, viewed in the light
most favorable to the verdict winner, was sufficient to enable the fact-finder
to find every element of the crime charged beyond a reasonable doubt.
Commonwealth v. Houck, 102 A.3d 443, 449 (Pa.Super. 2014). The
Commonwealth may meet its burden of proving every element beyond a
reasonable doubt through wholly circumstantial evidence, and the fact-finder
is free to believe all, part, or none of the evidence presented. Id.
Appellant argues that the Commonwealth failed to prove that appellant
caused the death, and he did so with malice and specific intent to kill.
(Appellant’s brief at 21.) “The only evidence that the Commonwealth
presented was the prior inconsistent recorded statements of
2
Sergeant Henderson was one of the officers who responded to the call
about shots fired at the gas station. (Notes of testimony, 11/8-12/10 at
87.)
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Shermaine Campbell and Harold Fields, and the trial testimony of
Sergeant William Wagner.” (Id.) As the trial court observes, appellant’s
argument concerns credibility of witnesses, and goes to the weight of the
evidence not to its sufficiency. (See trial court opinion, 7/17/14 at 10-11.)
Nevertheless, the evidence is clearly sufficient. To sustain appellant’s
conviction of first-degree murder, we must conclude that the evidence
proved beyond a reasonable doubt the three elements of first-degree
murder: (1) a human being was unlawfully killed; (2) the defendant was
responsible for the killing; and (3) the defendant acted with malice and a
specific intent to kill. 18 Pa.C.S.A. § 2502(a); Commonwealth v. Houser,
18 A.3d 1128, 1133 (Pa. 2011). First-degree murder is an intentional
killing, i.e., a “willful, deliberate and premeditated killing.” 18 Pa.C.S.A.
§ 2502(a) and (d); Commonwealth v. Fears, 836 A.2d 52, 59 (Pa. 2003).
The evidence established that
(1) the shooter crossed Penn Avenue towards
Sunoco; (2) the shooter pulled his hood over his
head, retrieved a gun from within his sweatshirt, and
walked directly to Johnson’s vehicle; (3) the shooter
aimed the gun at Johnson and shot at him through
the car window nine times; ([4]) the shooter fled
and was chased for a short period by Officer Wagner
before escaping; ([5]) Johnson died as a result of a
fatal gunshot wounds to his heart and lungs; and
([6]) three eye witnesses identified [a]ppellant as
the shooter. While two eye witnesses recanted their
identification at trial, the jury had the opportunity to
hear their tape recorded statements wherein they
identified [a]ppellant as the shooter shortly after the
shooting, and the jury was able to weigh the
credibility of the identifications. Additionally, the
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jury had the benefit of the unwavering identification
of Officer Wagner, who saw [a]ppellant’s face for
twenty-five seconds, without obstruction, and was
trained to focus on facial features.
Trial court opinion, 7/17/14 at 11-12 (citations omitted). The evidence was
clearly sufficient to sustain the first degree murder conviction.
Appellant also argues that the Commonwealth introduced insufficient
evidence to support the conviction of carrying a firearm without a license as
it did not prove beyond a reasonable doubt that appellant concealed a
firearm on or about his person. The statute provides “any person who
carries a firearm concealed on or about his person, except in his place of
abode or fixed place of business, without a valid and lawfully issued license
under this chapter commits a felony of the third degree.” 18 Pa.C.S.A.
§ 6106(a)(1). Sergeant Wagner specifically testified that appellant had a
concealed firearm on his person. The sergeant observed appellant pull a
pistol out from underneath his coat and walk with the pistol towards
Johnson’s vehicle. Sergeant Wagner also testified that when appellant
reached the vehicle, he repeatedly fired the weapon. Moreover, Campbell
and Fields also corroborated that appellant possessed a gun. No relief is
due.
Next, we turn to appellant’s claim that the verdict was against the
weight of the evidence.
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
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evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis
omitted) (citations omitted).
Appellant argues that the testimony of the eyewitnesses was
inconsistent and contradictory. He also points to the fact that
Sergeant Wagner testified that he saw the shooter’s hands and that there
were no tattoos. However, at trial, appellant showed his hands which were
covered in tattoos. Appellant also points out that the police report does not
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indicate that Sergeant Wagner saw anyone standing across the street and
walking toward the gas station.
Mindful of our standard of appellate review and its exceptionally
narrow scope, we find no basis for relief. The trial judge found that,
contrary to appellant’s allegations of grave inconsistencies and
contradictions in the eyewitness testimony, the evidence supported the
jury’s verdict. The court addressed appellant’s weight-of-the-evidence claim
in the following manner:
The jury heard testimony from Officer Wagner
regarding his identification of [a]ppellant as the
perpetrator. While [a]ppellant argues that two eye
witnesses stated at trial that they could not identify
[a]ppellant as the shooter, the jury also heard
testimony regarding the initial identifications of
[a]ppellant by both witnesses, as well as the threats
made to one of the eyewitnesses that accounted for
his recantation. The jury was free to assess the
credibility of these witnesses, and the jury clearly
found that the identifications made in the immediate
aftermath of the shooting, and free from outside
influence and pressure, were more credible than the
recanting testimony at trial.
Trial court opinion, 7/17/14 at 14-15 (footnote omitted). We agree.
Based on the well-reasoned trial court opinion and our review of the
record, we conclude that the court acted within its discretion when it
determined that the verdicts were not against the weight of the evidence
and declined to grant a new trial. Thus, no relief is due.
The final issue presented concerns whether the trial court erred when
it allowed Sergeant Henderson to testify about Campbell’s statement to
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them under the excited utterance rule. Appellant argues that too much time
had elapsed for the statements to qualify as excited utterances. He points
to the fact that seven to ten minutes of time passed from when
Sergeant Henderson arrived on the scene until he heard Campbell make the
statement, “I can’t believe he did it.” Appellant claims this lapse of time,
coupled with the sergeant’s own testimony that Campbell had calmed down
considerably, should have resulted in her statement not qualifying under this
rule.
Our supreme court has consistently defined “excited utterance” as:
a spontaneous declaration by a person whose mind
has been suddenly made subject to an overpowering
emotion caused by some unexpected and shocking
occurrence, which that person had just participated
in or closely witnessed, and made in reference to
some phase of that occurrence which he perceived,
and this declaration must be made so near the
occurrence in both time and place as to exclude the
likelihood of its having emanated in whole or in part
from his reflective faculties.
Allen v. Mack, 28 A.2d 783, 784 (Pa. 1942); Commonwealth v. Farrior,
458 A.2d 1356 (Pa.Super. 1983). “[T]here is no clear-cut rule as to the time
sequence; whether the actual delay between the event and the statement is
sufficient to negate ‘spontaneity’ must be resolved in light of the particular
facts of each case.” Commonwealth v. Pronkoskie, 383 A.2d 858, 863
(Pa. 1978) (citations omitted).
Upon consideration of the aforementioned factors, we find that
Campbell’s statement qualifies as an excited utterance and the trial court did
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not abuse its discretion. As the Commonwealth observes, on numerous
occasions, this court had previously approved the admission into evidence of
such declarations notwithstanding interim periods comparable to or even
greater than that involved in the present case. Lininger v. Kromer, 358
A.2d 89 (Pa.Super. 1976) (2 hours); Commonwealth v. Cheeks, 223 A.2d
291, 293 (Pa.Super. 1966) (45 minutes); Commonwealth v. Soudani, 155
A.2d 227 (Pa.Super. 1959), affirmed, 159 A.2d 687 (Pa. 1960); cert.
denied, 364 U.S. 886 (1960) (45 minutes).
Additionally, we disagree that the evidence demonstrated that
Campbell had regained her composure prior to making the statement. The
trial court found that she was “visibly shaken and upset” and the testimony
of Henderson supports this statement. Henderson emphasized “she was still
very upset, as you can imagine.” (Notes of testimony, 11/8/10 at 91.)
Campbell remained mere feet from the scene of the murder she had just
witnessed. Thus, appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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