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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CLAYTON CARTER III :
:
Appellant : No. 429 EDA 2020
Appeal from the Judgment of Sentence Entered August 29, 2019,
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003375-2017.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J. *
MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 23, 2021
Clayton Carter III appeals from the judgment of sentence imposed after
a jury found him guilty of first-degree murder and other related charges. Upon
review, we affirm.
The detailed facts are fully set forth in the trial court’s opinion. Briefly,
this matter arose out of a neighbor dispute gone too far. Some time prior to
2015, Carter and his family moved into his inlaw’s house next door to the
victim, George Jennings. Over the years, there was a lot of tension between
Carter and his neighbors, but especially between him and Jennings. Jennings
tended to harass, antagonize, call Carter names, and use derogatory language
towards him. On August 7, 2017, and into the next morning, this dispute
culminated in Carter shooting and killing Jennings.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Throughout that day, Jennings engaged in various activities to
antagonize Carter. In the final act, around 11 p.m., Carter returned from the
store and saw that Jennings moved his vehicle closer to Carter’s house. Carter
got out of his truck, went into the house, got a loaded gun, and hid it in his
pocket. Carter went back outside to move his truck, and while he was trying
to parallel park, Jennings shined a light at him. Carter got out of his truck
and confronted Jennings. At some point, when they were face to face, Carter
claimed that Jennings pulled out a knife and thought he was going to stab
him. Carter pulled out his gun and shot Jennings in the head. Jennings fell
backwards. Carter was not sure if he hit Jennings, and so he shot him in the
head again. Carter was arrested and charged.
After the shooting, the police searched Carter’s home. Three shotguns
and two revolvers were found in various places throughout the house, some
of which were loaded.
Additionally, a knife was found in the grass at the scene. It had Carter’s
DNA on it but did not have Jennings’. Jennings’ wife did not recognize the
knife or ever know her husband to carry or own such a knife.
Prior to trial, the Commonwealth filed a motion in limine to introduce
into evidence the five firearms found in his house in addition to the one used
to shoot Jennings. The defense objected. Following a hearing, the trial court
granted the Commonwealth’s motion.
On June 13, 2019, a jury found Carter guilty of first degree murder,
possessing an instrument of crime (“PIC”) (possessing a handgun with intent
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to employ it criminally), and tampering with or fabrication of physical
evidence;1 he was acquitted of two other PIC charges. The trial court
sentenced Carter to life without parole. Carter filed a post-sentence motion,
which the court denied.
Carter filed this timely appeal. Carter and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Carter raises the following four issues:
I. Considering the ample evidence of provocation presented, was
the finding of guilt on the charge of murder of the first degree . .
. against the weight of the evidence?
II. Did the trial court err in allowing evidence of five firearms
owned by [Carter] in addition to the firearm used in the shooting?
III. Did the trial court err in allowing hearsay statements made by
[Jennings] to Detective Edwards on March 26, 2015?
IV. Did the trial court err in allowing Dr. Daniel K. Brown to testify
regarding stippling and opinions regarding distances from which
shots must have been fired where [the] opinion testified to was
not provided to defense prior to trial?
Carter’s Brief at 4 (citations omitted).
In his first issue, Carter claims that the verdict for first degree murder
was against the weight of the evidence. Specifically, Carter argues that given
the substantial evidence of provocation, the jury could not have found malice.
According to Carter, Jennings’ repeated acts of harassment created an intense
passion which would render a reasonable person incapable of cool reflection.
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1
18 Pa.C.S.A. §§ 2502(a), 907(a), and 4910.
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Carter’s Brief at 15. Therefore, Carter claims the trial court erred in denying
his weight claim.
When reviewing a challenge to the weight of the evidence, our standard
of review is as follows:
The essence of appellate review for a weight claim appears to lie
in ensuring that the trial court's decision has record support.
Where the record adequately supports the trial court, the
trial court has acted within the limits of its discretion.
***
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
***
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. 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 evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations
omitted) (emphasis added). Absent an abuse of discretion, the trial court's
decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d
865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law.” Commonwealth v. West,
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937 A.2d 516, 521 (Pa. Super. 2007). By contrast, a proper exercise of
discretion “conforms to the law and is based on the facts of record.” Id.
Initially, we note that Carter does not specify how the trial court abused
its discretion; he merely argues evidence favorable to him and, essentially,
asks us to reweigh the evidence. Based upon our standard of review for
weight claims, we cannot do so. Clay, supra. Nonetheless, after a review of
the record and the trial court's rationale for denying Carter’s weight claim, we
conclude that the trial court did not abuse its discretion.
In explaining its rationale for denying Carter’s weight claim, the trial
court noted that critical to a first degree murder conviction is a finding that
the killing was done with malice, i.e., there was an intent to kill, there were
no circumstances reducing the killing to voluntary manslaughter, and the
killing was without lawful justification or excuse. The trial court reviewed the
evidence and found it supported the jury’s conclusion that Carter acted with
malice, and was not justified in killing Jennings’, despite the evidence of
Jennings’ provocation. The court explained:
On cross examination, Ms. Jennings admitted, that in the past,
her husband had told her that he intended to make [Carter]
"uncomfortable" so that he would move from his father-in law's
home because [Carter] was not a friendly or good neighbor. There
was evidence presented of Jennings's poor behavior during the
day prior to the shooting that was labeled "provocation" by
[Carter]. However, poor or even rude behavior on the part of
Jennings certainly didn't warrant or excuse [Carter's] use of
deadly force. [Carter] made a conscious decision to arm himself
with a handgun in the absence of any physical or verbal threat.
He admitted he did not expect a physical threat. Although the act
of carrying the handgun on his property was not an illegal act, it
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was circumstantial evidence that [Carter] was prepared to act with
deadly force absent any physical or verbal threat from the victim,
or any such threats having made by the victim in the past.
Additionally, we considered the jury's finding, beyond a
reasonable doubt, that [Carter] fabricated evidence by placing the
knife at the scene of the shooting. Thus, the jury concluded that
Appellant did not only arm himself with the small handgun he
concealed, but that he also took the folding knife with him, and
prior to the police arriving, he placed it at the scene of the
shooting to create justification for his use of force.
Moreover, [Carter] fired a second shot at Jennings because he
indicated he wasn't sure he hit him with the first shot. He told
detectives that he shot the victim a second time because he saw
the victim move after the first shot and the knife was in the
victim's hand. Given that [Carter] planted the knife at the scene
and Ms. Jennings was watching from her window and indicated
she did not see her husband move after the first shot, it is most
likely that [Carter’s] second shot merely confirms his intent to kill
Jennings. The video evidence from a neighbor's security system
clearly records the sounds of both shots, emphasizing how long
the 11-12 second period of silence really was. During that time,
Appellant did not step back from the alleged threat and assess
whether Jennings was incapacitated. lnstead he stepped closer to
the alleged threat and aimed the pistol at Jennings face before
firing the second shot. As previously noted, the jury determined
that [Carter] placed the knife at the scene. Hence, we find no
merit in [Carter's] contention that the second shot was a result of
his thinking "that [Jennings] was going to get back up and get
[him] with the knife."
Trial Court Opinion, 4/23/20, at 12-13 (citations and footnotes omitted).
Under these facts, the trial court determined that the weight of the evidence
supported a finding beyond a reasonable doubt that Carter acted with a willful,
deliberate, and premeditated intent to kill Jennings, and that intent
outweighed any evidence of justification based upon Jennings’ provocation.
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The trial court therefore concluded that the verdict for first-degree murder
was not against the weight of the evidence.
Accordingly, Carter is not entitled to any relief on this claim.
In his remaining three issues, Carter claims that the trial court erred in
admitting certain evidence at trial. Specifically, Carter contends that the trial
court erred by allowing into evidence: 1) additional firearms he owned, 2)
hearsay statements the victim made to a police detective about an incident in
2015; and 3) an expert’s opinion that was not provided to the defense prior
to trial. As our Supreme Court has explained, “[t]he admissibility of evidence
is a matter solely within the discretion of the trial court. This Court will reverse
an evidentiary ruling only where a clear abuse of discretion occurs.”
Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994) (citation
omitted). “Generally, an appellate court's standard of review of a trial court's
evidentiary rulings is whether the trial court abused its discretion; however,
where the evidentiary ruling turns on a question of law our review is plenary.”
Buckman v. Verazin, 54 A.3d 956, 960 (Pa. Super. 2012) (citations
omitted).
In his second issue, Carter claims that the trial court erred in allowing
the Commonwealth to introduce into evidence five firearms he owned in
addition to the firearm he used during the shooting. Carter’s Brief at 22.
According to Carter, evidence of these other firearms was unfairly prejudicial
because none of them were used during the murder. Id. at 25-26. He
maintains that evidence of two incidents where Carter used larger guns to
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ward off Jennings, which the defense introduced to show the animosity and
antagonism between Carter and Jennings, was sufficient for the
Commonwealth to show that he owned other guns. Carter’s Brief at 26.
The threshold inquiry regarding the admission of evidence is whether
the evidence is relevant. “Evidence is relevant if it logically tends to establish
a material fact in the case, tends to make a fact at issue more or less probable,
or supports a reasonable inference or presumption regarding the existence of
a material fact.” Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa.
1992). In addition, evidence is only admissible where the probative value of
the evidence outweighs its prejudicial impact. Commonwealth v. Story, 383
A.2d 155, 160 (Pa. 1978).
Generally, as Carter argues, where a weapon cannot be specifically
linked to a crime, that weapon is not admissible as evidence.
Commonwealth v. Robinson, 721 A.2d 344, 351 (Pa. 1998). However,
here, the Commonwealth offered evidence of the other firearms to show that
Carter had a premeditated plan to kill Jennings. The Commonwealth argued
that, during prior incidents, Carter threatened Jennings with other larger guns
he owned.2 But this time, he intentionally chose his Ruger handgun, the barrel
of which was only 2.75 inches, so he could conceal it and kill Jennings, rather
than just defend himself. In explaining its rationale for granting the
____________________________________________
2
Carter owned and had access to other weapons not conducive to
concealment, specifically, three long barrel firearms and two additional
handguns, both bigger in size than the handguns used on the night of the
shooting.
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Commonwealth’s motion allowing Carter’s other guns into evidence, the trial
court stated:
ln this case, [Carter’s] intent was a material issue of fact the jury
was required to decide in their deliberations. They were charged
in determining whether [Carter] acted with malice and
premeditation when he killed the victim. The firearm [Carter]
selected to put into his pocket and take with him while he engaged
with the victim, in light of the variety of firearms of various sizes
owned by [Carter], was directly related to this material issue.
[Carter] chose to take the Ruger .380, a handgun small enough
to hide in his sweat jacket pocket, instead of a variety of larger
firearms that could not be easily hidden from view. By choosing
the Ruger, [Carter] was able to approach Jennings without making
him aware that [he] was armed with a deadly weapon. This fact
makes the presence of malice more probable and supports a
reasonable inference or presumption that [Carter] acted with
premeditation. This is particularly true in light of [Carter’s]
statement to police that prior to the night of the shooting, he had
brandished a long barrel firearm or shotgun when Jennings
confronted [him] at his front door and Jennings had backed down
and left.
[During argument on the Commonwealth's motion in limine,]
[d]efense counsel indicated that he was going to be eliciting
testimony regarding the 2015 incidents between Carter and
Jennings to show Jennings's prior antagonistic conduct related to
[Carter]. He agreed that those incidents were relevant to show
the history of the relationship between the two. Both of those
confrontations ended when [Carter] displayed a firearm to
Jennings and he backed down and left [Carter's] property . . . .
The court gave careful consideration as to whether the probative
value of the evidence that [Carter] had access to additional
firearms would unfairly prejudice [Carter]. ln the present climate,
where mass shootings are no longer uncommon in our
communities, the fact that [Carter] owned multiple firearms may
have the potential to inflame the jury. After weighing all the
factors, we determined the probative value outweighed any
potential prejudice for the following reasons: (1) all the weapons
in question were legally owned by [Carter]; (2) there was going
to be evidence of [Carter’s] ownership of other firearms admitted
through his videotaped interview with detectives; (3) the agreed
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upon relevance of evidence of the 2015 altercations with Jennings
and defense counsel's representation that he was going to be
seeking admission of evidence of at least one of the 2015
incidents; and (4) as noted above, evidence of additional, larger
firearms previously employed by [Carter] to warn off Jennings,
goes directly to the material issue of intent and malice in [Carter’s]
choice of the small, easily concealed firearm.
We are guided by the principle that extremely prejudicial
evidence, including prior crimes or wrongs, may be admissible
when relevant for a purpose other than to show bad character,
i.e. motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake. The courts also permit the
admission of prejudicial evidence to tell the complete story,
finding that when the probative value outweighs any unfair
prejudice it is admissible. In this matter, the legal ownership of
additional firearms is not a bad act and is therefore less prejudicial
than a prior crime or bad act. Moreover, the evidence of other
accessible firearms goes directly to show a material fact,
[Carter’s] intent and malice, and provides a more complete picture
of what [his] choices were on the night of the shooting. Under
these circumstances, we found the probative value outweighed
any possible unfair prejudice[.]
Trial Court Opinion, 4/23/20, at 14-17 (quotations and citations omitted).
Based upon the trial court’s thorough consideration and explanation for
allowing information regarding Carter’s other firearms into evidence, we
conclude that the trial court did not abuse its discretion or commit an error of
law. Carter is entitled to no relief on this issue.
In his third issue, Carter claims that the trial court erred by allowing a
detective to testify to statements Jennings gave about an incident on March
26, 2015, involving Carter and Jennings. These statements indicated that
Carter followed a neighbor, Theresa Lyons, and her two young children down
the street. Because he thought this was odd, Jennings confronted Carter.
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Carter maintains that these hearsay statements depicted him as an aggressor,
and were prejudicial. Carter’s Brief at 28.
Furthermore, Carter claims that, although the trial court acknowledged
in its 1925(a) opinion that Jennings’ statements were hearsay, its conclusion
that their admission was harmless as cumulative evidence was also error.
Carter’s Brief at 31. According to Carter, Kelly Jo Blasé’s statements about
the incident differed from Jennings’, and therefore were not cumulative. Id.
As acknowledged by the trial court, this evidence was hearsay, and was
improperly admitted into evidence. However, as also noted by the trial court,
the same incident was described by another witness to the incident who
testified at trial. Trial Court Opinion, 4/23/20, at 18. Blasé testified that she
noticed her neighbor, Theresa Lyons, and her two young boys in the street,
and that she was verbally engaged with Carter. Blasé saw Lyons grab the
boys’ hands and quickly start walking home. Blasé and Jennings walked over
to Lyons and Carter and followed her home. As Blasé and Jennings were
coming back, they saw Carter walking slowly with a gun, watching them. This
behavior caused Blasé to feel shaken and scared. She called the police. N.T.,
6/10/19, at 217-220.
Based upon our review of the record, we agree that Blasé did not state
that Carter followed Lyons and her children. However, as the trial court noted,
Blasé’s rendition of the incident was substantially similar to the statements
Jennings gave to the detective. It is evident from her testimony that the
atmosphere created by Carter’s behavior was threatening and caused the
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Lyons to feel sufficiently uncomfortable that she quickly needed to return
home and be escorted by Blasé and Jennings. Erroneously admitted evidence
that is cumulative of other, untainted evidence is harmless error.”
Commonwealth v. May, 656 A.2d 1335, 1343 (Pa. 1995).
Furthermore, even if this were not cumulative evidence, we observe that
“[n]ot all errors at trial, however, entitle an appellant to a new trial, and [t]he
harmless error doctrine, as adopted in Pennsylvania, reflects the reality that
the accused is entitled to a fair trial, not a perfect trial . . . .” Commonwealth
v. West, 834 A.2d 625, 634 (Pa. Super. 2003), appeal denied, 586 Pa. 712,
889 A.2d 1216 (2005) (quoting Commonwealth v. Drummond, 775 A.2d
849, 853 (Pa. Super. 2001), appeal denied, 790 A.2d 1013 (2001) (internal
citations and quotations omitted)). “An error may be deemed harmless, inter
alia, where the properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the verdict.” See
Commonwealth v. Young, 748 A.2d 166, 193 (1999).
Considering the circumstances of this incident as discussed above, the
jury was presented with overwhelming evidence of Carter’s guilt. Any
prejudicial effect from the admission of this evidence was so insignificant by
comparison that it could not have contributed to the verdict in this case.
Therefore, we find that the trial court’s admission of these statements,
although hearsay, constituted harmless error. Carter is entitled to no relief
on this issue.
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In his last issue, Carter claims that the trial court erred in allowing Dr.
Daniel Brown3 to testify at trial regarding specific distances from which the
shots were fired because the details were not included in his expert report.
Carter’s Brief at 33. Specifically, he claims that Dr. Brown’s expert report only
stated that there was “evidence of intermediate-range firing” but did not
define what was meant by this phrase and the specific distances encompassed
by it. As a result, Dr. Brown’s opinion as to how far away Carter was when
he shot Jennings both times was a surprise to the defense. Carter’s Brief at
41.
Essentially, Carter argues that Dr. Brown’s testimony exceeded the
scope of his report. Generally, an expert may not testify to matters beyond
the fair scope of the expert report. To determine whether the testimony goes
beyond the fair scope of the report, we must examine the facts and
circumstances of the particular case. We are guided by the following:
[I]n determining whether an expert's trial testimony falls within
the fair scope of his pre-trial report, the trial court must determine
whether the report provides sufficient notice of the expert's theory
to enable the opposing party to prepare a rebuttal witness. In
other words, in deciding whether an expert's trial testimony is
within the fair scope of his report, the accent is on the word “fair.”
The question to be answered is whether, under the particular facts
and circumstances of the case, the discrepancy between the
expert's pre-trial report and his trial testimony is of a nature which
would prevent the adversary from making a meaningful response,
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3
Dr. Brown is an associate medical examiner for the City of Philadelphia. He
conducted the autopsy on Jennings after the shooting and prepared a report
and testified as to his findings.
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or which would mislead the adversary as to the nature of the
appropriate response.
Woodard v. Chatterjee, 827 A.2d 433, 442 (Pa. Super. 2003) (citations and
quotation marks omitted) (emphasis in original).
Here, the trial court concluded that Dr. Brown’s testimony did not go
beyond the fair scope of his report. In reaching this decision, the trial court
explained:
[Carter] was in possession of the expert report for almost two
years. During that time, [Carter] had an opportunity to inquire
and investigate what Dr. Brown, a forensic pathologist, meant by
the term "intermediate-range". lt is self-evident that the fact
finder would need to have that term explained as it was not
defined in the report itself. Thus, [Carter] was aware that further
investigation was warranted upon his review of the expert report.
We find that Mr. Green [defense counsel] completed such an
investigation given the content of his cross-examination of Dr.
Brown and his statements to the court. During Dr. Brown's cross-
examination, Mr. Green referenced a recognized expert in the field
of forensic pathology and gunshot wounds, Dr. DiMaio, and
questioned Dr. Brown as to his familiarity with "any authorities
who note stippling up to thirty-six inches from shaft barrel guns."
Mr. Green also stated to the court that he reviewed "substantial
authoritative publications, both the Dr. DiMaio manuscript and the
authoritative articles . . . that contradict what Dr. Brown said
about eighteen to twenty-four inches." The record shows that
prior to trial Mr. Green prepared his challenge to Dr. Brown's
opinions as to distance in inches should they differ from his own
investigation. Furthermore, the most telling statement by Mr.
Green to the court is his admission that "[he knew that] this
stippling question [as it relates to distance] was a potential issue
in the case forever, it's always been a gunshot case.” In
consideration of the materials available to Mr. Green prior to trial
that were used in the cross-examination of Dr. Brown, we
overruled [Carter's] objection as follows:
So [the court] took a look at Commonwealth Exhibit 16,
which is the autopsy report. And what the report does say
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on both gunshot wound "A" and "B" is 'evidence of
intermediate range firing'. I Googled it. lt came up with six
inches to thirty inches. I think, Mr. Green, given your
experience as a trial attorney, that's pretty clear what that
means. And it's easily found, if it's not. So given the fact
that you had the information regarding the fact that it was
intermediate range, you used it in your cross-examination
with the article that you pulled up, I'm going to overrule
your objection.
Trial Court Opinion, 4/23/20, at 25-27. Under these circumstances, the trial
court found that Carter was not prevented from making a meaningful response
to Dr. Brown’s opinion and was not mislead as to the nature of an appropriate
response.
Given the trial court’s explanation, we conclude that the court did not
abuse its discretion or commit an error of law in allowing Dr. Brown to testify
regarding the specific distances from which Carter shot Jennings. Accordingly,
Carter is not entitled to any relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/21
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