Com. v. Cager, J.

J-S28001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAROD CAGER,

Appellant No. 1994 WDA 2014

Appeal from the Judgment of Sentence June 16, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013713-2011

BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ. MEMORANDUM BY OLSON, J.: FILED AUGUST 25, 2017

Appellant, Jarod Cager, appeals from the judgment of sentence entered on June 16, 2014 in the Criminal Division of the Court of Common Pleas of Allegheny County, as made final when the trial court denied Appellant’s post-sentence motions on October 30, 2014. We affirm.

The factual and procedural history in this case is as follows. On August 14, 2011, Kiona Sirmons was at the home of relatives on Rochelle Street in Pittsburgh, Pennsylvania. She was joined by several friends, including Ravin Reid, Montaja Littlejohn, and Valon Pennix. Sometime later, Sirmons’ boyfriend, Antwan Leake, and Jacelyn Terry joined the gathering. Upon arrival, Terry remained in the living room with the other women but Leake went into the kitchen. According to Detective James McGee, Sirmons stated in an interview on September 2, 2011 that two black males entered

• • Retired Senior Judge assigned to the Superior Court.

J-S28001-17

the residence and proceeded to the kitchen approximately 15 minutes after Leake arrived.1 After two or three minutes, Sirmons heard multiple gunshots and saw Appellant and Terrel Noaks run from the kitchen and exit the front door.2 In a recorded statement given to the police on September 9, 2011, which the Commonwealth published to the jury, Sirmons confirmed that she saw Appellant and Noaks exit the home shortly after the shooting. Sirmons also identified Appellant and Noaks in a photographic array.

At trial, none of the women present at the Rochelle Street residence recalled details of the shooting on August 14, 2011, including the identities of any males who entered or left the house other than Leake. Sirmons testified that she previously identified Appellant and Noaks as the shooters because detectives harassed her and visited her at work. She also testified that the police told her who to circle on the photographic array and she denied telling police nicknames used by Appellant and Noaks.

Leake died after sustaining four gunshot wounds during the August 14 attack. Of these, wounds inflicted on Leake’s head and chest were deemed capable of causing death. A ballistics expert called by the Commonwealth

testified that five shell casings recovered from the crime scene were .40 ____________________________________________

1 Another detective testified at trial that Pennix met with investigators in February 2013 and said that Appellant was present in the home before Leake’s arrival and that he entered the kitchen area after Leake. 2 Sirmons testified at trial that she grew up with Appellant and that she knew Noaks from her neighborhood.

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caliber Smith and Wesson casings fired from a Glock handgun. These casings matched the .40 caliber bullet fragments recovered from the fatal wounds inflicted upon Leake. The Commonwealth also called Tanner Shawl as a witness against Appellant. Shawl testified that in December 2010, approximately eight months prior to the murder, he purchased a .40 caliber Glock handgun on behalf of Appellant. Shawl further testified that Appellant selected the gun and supplied funds to purchase the firearm.

Lastly, the Commonwealth introduced testimony from a witness trained in the field of cellular telephone data analysis. This testimony established that Appellant received four calls from Leake on the day of Leake’s murder. In addition, Noaks telephoned Appellant five times on the date of the crime. Four calls from Appellant’s telephone on August 14, 2011 between 6:00 p.m. and 8:00 p.m. utilized a cellular tower situated in the same general area as the crime scene and Appellant’s mother’s residence.

At the conclusion of trial on February 4, 2014, a jury convicted Appellant of first-degree murder, 18 Pa.C.S.A. § 2502(a), and carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a)(1). The jury acquitted Appellant of criminal conspiracy. On June 26, 2014, the court sentenced Appellant to life imprisonment for his murder conviction and a concurrent term of 40 to 80 months’ incarceration for carrying a firearm without a license.

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Appellant filed his initial post-sentence motion on June 26, 2014 and, thereafter, filed an amended motion on October 24, 2014. The court denied post-sentence relief on October 30, 2014. Appellant subsequently filed a timely notice of appeal on December 8, 2014, after the court reinstated his direct appeal rights. Following several extensions, Appellant, pursuant to Pa.R.A.P. 1925(b), filed a concise statement of errors complained of on appeal on April 26, 2016. The trial court issued its opinion on August 2, 2016.

Appellant raises the following questions for our review:

Whether [Appellant] is entitled to a Frye[3] hearing to determine the admissibility of an eyewitness identification expert consistent with the recent holding in Commonwealth v. Walker[, 92 A.3d 766 (Pa. 2014)?]

Whether the trial court erred when it admitted evidence concerning a firearm that had been purchased for [Appellant] approximately eight months before the homicide[?]

Whether the trial court abused its discretion when it determined that the verdict in this matter was not against the weight of the evidence[?]

Appellant’s Brief at 4.

Appellant’s first two claims challenge trial court rulings governing the admission of evidence. The following standards govern our review of such claims. ____________________________________________

3 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

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The admission of evidence is committed to the sound discretion of the trial court, and a trial court's ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010).

In his first claim, Appellant argues that the trial court improperly denied his request for a Frye hearing to determine whether expert testimony would have assisted the factfinder in assessing eyewitness identification evidence. At trial, none of the Commonwealth’s witnesses identified Appellant. Nonetheless, Sirmons’ pretrial statements to police identified Appellant as one of two individuals who entered the home before Leake was shot and fled the scene after shots were fired. The court admitted her statements of identification for substantive purposes as prior inconsistent statements pursuant to Pa.R.E. 803.1(1)(B) and (C). Citing Walker, Appellant argues that he was entitled to show how expert testimony would have aided the jury in considering Sirmons’ statement since the Commonwealth primarily relied on her identification, which she made following a stressful episode that involved gunfire. In its Rule 1925(a) opinion, the trial court determined that expert testimony regarding eyewitness identification would not have aided the jury in this case since

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none of the Commonwealth’s witnesses identified Appellant at trial. We conclude that Appellant is not entitled to relief.4

In Walker, our Supreme Court set aside the per se restriction on expert testimony concerning eyewitness identifications. Instead, the Court held,

We now allow for the possibility that such expert testimony on the limited issue of eyewitness identification as raised in this appeal may be admissible, at the discretion of the trial court, and assuming the expert is qualified, the proffered testimony relevant, and will assist the trier of fact. Of course, the question of the admission of expert testimony turns not only on the state of the science proffered and its relevance in a particular case, but on whether the testimony will assist the jury. Trial courts will exercise their traditional role in using their discretion to weigh the admissibility of such expert testimony on a case-by-case basis. It will be up to the trial court to determine when such expert testimony is appropriate. If the trial court finds that the testimony satisfies Frye, the inquiry does not end. The admission must be properly tailored to whether the testimony will focus on particular characteristics of the identification at issue and explain how those characteristics call into question the reliability of the identification. We find the defendant must make an on-the-record detailed proffer to the court, including an explanation of precisely how the expert's testimony is relevant to the eyewitness identifications under consideration and how it will assist the jury in its evaluation. The proof should establish the presence of factors (e.g., stress ____________________________________________

4 We reject the Commonwealth’s assertion that Appellant waived appellate review of his opening claim. Appellant moved for the appointment of an expert in October 2012, almost two years before Walker was decided. In addition, Appellant alleged in his concise statement that the trial court erred in refusing his request to appoint an expert to testify regarding eyewitness identification. The question raised in Appellant’s concise statement fairly subsumes the issue he raises on appeal and the trial court had an opportunity to pass upon the present claim during pretrial proceedings. Waiver is unjustified under these circumstances.

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or differences in race, as between the eyewitness and the defendant) which may be shown to impair the accuracy of eyewitness identification in aspects which are (or to a degree which is) beyond the common understanding of laypersons.

Walker, 92 A.3d at 791-792.

Here, the trial court basically determined that expert testimony would not have aided the jury in assessing the identification evidence offered in the form of pretrial statements. We perceive no grounds to disturb this assessment. As the trial court noted, none of the Commonwealth’s witnesses identified Appellant at trial; however, this observation does not lead to our conclusion, as we believe that the factors that make identification of a stranger unreliable apply equally to identifications made within and without the courtroom. Instead, the record here demonstrates that the witnesses at trial retracted their prior statements, told the jury that they did not recall details about the shooting or who was present, and relayed that the events sub judice caused them great stress and trauma. Practically speaking, the eyewitnesses here did the work of expert testimony in explaining for the jury how factors such as stress and fear impaired their ability to accurately identify any suspects. In addition, we note Sirmons’ testimony that she grew up with Appellant and knew Noaks from her neighborhood. In totality, then, while the events at issue were no doubt stressful (as the eyewitnesses themselves explained to the jury), there are no factors in this case such as a claim of cross-racial identification or identification of unknown individuals that call into question the reliability of

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the pretrial statements in a way that could elude the common understanding of laypersons. Under these circumstances, Appellant is not entitled to relief.

In his second claim, Appellant asserts that the trial court erred in admitting Shawl’s testimony regarding the purchase of a .40 caliber Glock handgun on behalf of Appellant. Appellant maintains that this evidence was irrelevant and highly prejudicial.

“All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. “Evidence is relevant if it logically tends to establish a fact material to the dispute or tends to support a reasonable inference regarding a material fact.” Commonwealth v. Barnes, 871 A.2d 812, 818 (Pa. Super. 2005). In this case, the court concluded that the challenged evidence was relevant since Appellant’s possession of an illegally obtained firearm that matched the bullets at the crime scene, while not dispositive in and of itself, certainly [made] it more likely that he committed the murder.” Trial Court Opinion, 8/2/16, at 15. After careful review, we concur with the court’s assessment and adopt it as our own. Moreover, we see no basis for Appellant’s claim that the introduction of the contested evidence constituted unfair prejudice. Thus, this claim merits no relief.

In his final claim, Appellant contends the verdict was against the weight of the evidence. To support this contention, Appellant points out that no witness testified under oath that Appellant was at the crime scene and

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that the ballistic and cellular telephone evidence failed to establish his participation in the murder.

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. Brown, 648 A.2d 1177, 1189 (Pa. 1994)]. 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. Commonwealth v. Farquharson, 354 A.2d 545 (Pa. 1976). 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (parallel citations omitted).

After careful review and consideration, we conclude that the trial court exercised sound discretion in rejecting Appellant’s challenge to the weight of the evidence. See Trial Court Opinion, 8/2/16, at 16 (finding that verdicts were not contrary to weight of the evidence where two witnesses identified Appellant and Noaks shortly after killing, witnesses’ subsequent retraction was result of witness intimidation, and ballistics and cellular telephone data supported inference that Appellant was in vicinity of crime scene). Accordingly, we adopt the trial court’s reasoning as our own and hold that

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Appellant’s final claim merits no relief. As we rely upon the trial court’s opinion in part, we direct the parties to attach a copy of the trial court’s opinion of August 2, 2016 to any future filings related to this appeal.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/25/2017

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Circulated 07/31/2017 03:04 PM

IN THE.C.OURJ'OF CO.MMON PLEAS OF ALLEGHENY COUNTY,. PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA CRIMINAL DlVISlON

V. CC No. 201113713

JAROD CAGER

Appeal of

JAROD CAGER,

Appellant

OPINiON

RANGQS,J. August 2, 2016

On February 4, 2014, Appellant; Jarod Cager, was convicted by a jury of one count of Murder in the first Degree and one count of Carrying a Firearm Without a License; 1 This Court sentenced Appellant on June 16, 2014 to a mandatory term of life ...vithout parole on the Murder in the First Degree count, and a concurrent term of 40~80 months incarceration on the Carrying a Firearm Without a.· License count. This Court denied Appellant's Post-Sentence Motion oh October 30, .2014, Appellant filed a 'Notice of Appeal on December 81 2014 and, after several extensions of time due to the lack of transcripts, filed his Statement.of Errors Complained of.on Appeal on April 27, 2016.

I Appellant was found.not guilty of Criminal Conspiracy.

MATTERS COMPLAINED OF ON APPEAL

Appellant allegeseight errors on appeal: Appellant alleges that this Court erred in denying his request for an expert witness to testify regarding eyewitness identification. Next, Appellant alleges this Court erred when it denied his request for.information regardingthe unsolved shooting death of Jason Daniels. Appellant alleges this Court erred in admitting color a.utopsy photographs that were · more prejudicial rhan probative. Appellant next alleges this Court erred by permitdng the Commonwealth to play a statement of a witness Appellant alleges was led by police, Appellant further alleges thatthis Court erred.in.admittingtwo witnesses' statementswhich Appcliant deems.irrelevant, highly prejudicial and of little probative value. Appellant alleges insufficiency of evidence as to both counts as well as alleging that. the verdict was against the weight of the evidence. · (Statement of Errors to be Raised on Appeal, p. 3~5)

SOMMARYOF THE EVtDEN'CE

At trial, Dr. Abdulrezak Shakir of the Allegheny CountyMedical Examiner's Office, testified as an expert witness in the field of forensic pathology. (Transcriptof Jury Trial of J anuary 23:..February 4, 2014, Volume i, hereinafter, TI; at 124-125) Dr. Shakir conducted an autopsy on the body of Antwan Leake, the. victim in this case .. (IT 126) Dr. Shakir testified that the deceased was riot under the. influence pf any intoxicant or drug: (IT 129) Dr .. Shakir stated he found evidence of multiple gunshot wounds to Leake: "one to the head, one on the chest, one on the, right heel, and evidence of a grazing wound on the neck." (IT BO) Four color photographs taken during the examination of the body were published to. the jury over the objection of defense counsel: (IT· 133) The bullet wound to the head, in and of itself, was a fatal wound capable of causing death. (rt' 137) The bullet rothe chest broke several rihs and penetrated both lobes ofthe left lung, causing massive blood loss. (TT 139) This Wound was also capable, in and of itself, of.causing death. (T1' 14 I) In contrast, the *4 gunshot wound to the heel arid the bullet which grated. Leakes neck were. riot considered. lethal as they would not. have caused Leake's death. (IT 145, 147) Two bullets were recovered from the victim's bodyand sent to ballistic experts for analysis; ('IT 148) Dr. Shakir testified that, in his opinion and within a reasonable degree ofmedica] certainty, the. cause ofdeath was gunshot wounds to the .head and chest and the manner of death was homicide, Id.

Clifton Pugh, a Pittsburgh Police Detective for 21 years, testified that. on August 14, 2011 he was assigned to investigate the death ofAnrwon.Leake and was one of the tii:st detectives. to arrive 011 the scene. {IT 154) Detective Pugh testified that numerous pictures were taken of the crime. scene. at J 15 Rochelle Street. (TT 158) In one of those pictures; a black semi-automatic: handgun protruded from Leake's waist on his left side. (IT 170)

Kiona Sirmons testified that 31 S Rochelle Street was the home -of her cousin, Elizabeth Macklin. (tr 182) She -stated that she was a frequent guest of the home and was. present on August 14;'.Zdl 1. She. had a key to the house and had gone there to retrieve some personal hems. (rT 186) While she was there, she called some friends to come over, Ravin Reid and Montaja Littlejohn. ld. Ravin and Montaja came over; and Montaja brought Valon Pennix.Montaja's friend.ro the residence, (I'T 189) Some time later; Leake arrived with Jacelyn Terry. (IT 190) Jacelyn Stayed in the living room with the other women, .bur Leake went to th¢ kitchen. Id. Sirmons testified that she arid Leake were dating. (IT 192) Between the time Leake entered the house and the time she heardgunshots, she testified that she did not. see anyone else come into the house. (IT 199) She testified that she grew u.p with Jarod Cager and knew Terrel Noaks to see him in the neighborhood. (Tl' 208)

Contrary to her trial testimony, Sirmons previously identified Caget and Noaks as the two men she saw fleeing from the house. Sirmons was interviewed by: the police on the night ofthe shooting, and again on September 2, 2011. (TT 199, 202) On September 9, 2011, Sirmons ~vc a recorded statement to the police. (IT 243} In the .recorded statement, which was published to thejury, Sirmons indicated that Noaks and Cager ran out of the house shortly after. the shooting. (.rl" 240). She

jdcntified Noaks and Cager from a· series ~f.photographs. (IT 242) At trial, her testimony on direct. examination . varied· substantially from the recording. She

testified that she did not.see who ran out of the 'house after the shooting: (IT 242) She: said that she

identified ~ager and Noaks· as the shooters because· . Detective McGee "was getting. on qiy . . nerves so I

told him .. anyiliing/1 (IT 205) She first testified .that the police never.showed her any photographs•

..('.IT 212) Later, she testified that the police did show her a photo array but .to1d her who to circle. (IT 254) She denied telling the po.lite the nicknames. for Cagerand Noaks, (rt 20$.; 2.W).

Homicide Detective James . .McGee testified that he interviewed Sirmons 011 :s:eptcm:b.et . 2,.

2Ql1. rrr '292) .Detective McGee. testified 'that Sirmons told him she was at her aunt's housewith her. girlfriends and.Leake. (TI" 293-294) She told the Detective that approximately 15· minutes after Leake arrived, two black males walked into the house and proceeded to the kitchen where Leake-. was. (TI' 29..4) Sheassumed.they were friends-of Leake. Id: Two or three minutes later, she. heard multiple. gunshe>t~,. (IT 295) .She saw two 'people she. knew as, Hot Rod and Tide? running from the' kitchen area out- the. front poor. Id:

.Next; Valon Pennixtestified thatshe .had little recollection of the specifics of September 2,

2on. She claimed that.people she d'.1d riot know enteredand exited the house. {tr 3?'9) She he.ard one or more male voices that she did not recognize. (IT 330) She further claimed.that she clid hot

remember her interview. with the. ·police pr 'her meeting with officers and the Assistant District Attomey ("ADA"). the previous week. She.denied ever tellln~ police that two men other than.Leake entered the house on September zi,d: (TT'388) She. .denied that she told authorities that these nvo

2 Sirmons testified .ar trial that "Hot.'Rod" referred to: Cager and "Tido" referred to Noaks. (TT 24 7, 255)

······ ·····-····--··--"'"""·-·--··· .,, -·-············· .. ···········-···--··- ---·---·-· ···-·"·-- .. , ---·-·--···· · ·""_ , ,

men went to. the- back of the ~ house . where the kitchen was· and ran outof . . the ' . house . after . shots. . . were

fired. '(IT 3$9)

Detective Pugh resumed the stand and testified that in February 2013- Pennix met with rhe

ADA arid two detectives, including himself .. (Yf '395) She stated at -that time 'that .onthe ·.nignr in

question, two males, . 011e whose name wasHot Rod, were in the home before Leake. arrived. (T:1'.394)

Leake arrived with Jacelyn and he: went to the kfrcben while Jacelyn stayed in the living room. (IT

397) Apptoximately a minute later, the two males also went info the.kirchen area. id Pennix seated

she heard .app.rQ}qin,Lcdy ten gµnshots·and hid until she 'heard Kicna's voice. u. Ravia Reid testified that she was on the couch at 315 Rochelle Street on Aµgust 1 ~. 20·11:-whth

she heard four or five gunshots co·ming from the kitchen where she earlier saw teake go: Oucy Trial Transcript, Volume It, .hereinafter-Tf'Z at 1'9-21) She did not see any other males arrive at the house.

(IT2.20) A(te.r she' heard the.shots.she. hid in. the .atric with V.alon and Kiana until .police-arfived,

(IT2 24-25)

J acclyn Terry testified similarly. She stated· that she was in the li:v.ing room, and Leake was in

the kitchen. (IT2 4'2-43) She heard gunshots. (IT2 4-8) Kiona walked into the kitchen, started

screaming and. called the police. Id; The police. roid.her-to go upstairs-and Jacelyn went to ·the· attic.

with Kiona. Id. She claimed she notsee any males 'other than Leake in the house. (Tf2 49)

Pittsburgh Police Detective Christopher Mayburn helped secure the scene and observed the

emotional state ofthe young women in the attic. (IT2 74) He described them as hysterical and

screaming, Id. He testified thatone of. the females said :two men with guns-left the house. :(TT2 75)

Detective Pugh resumed the stand again and described the crime scene as he first observed it.

(T't2 93} On· his initial walk-through, be observed shell casings near Leake's body and a bullet hole

· in the 'cabinet door. (TT2 9 .5) The front door wasopen and the sideand back doors were' closed and

.lockedwith deadbolts. ·(TT2 101) Eight bullet.casings were recovered from the .scene: four, .357

.. .. _._.._ -········ ··-·------·~ _____ __..,.,... ·- ... ··-···-----··-" .. ---·-----·-. ...._

caliber Sig Sauer casings and four Smith and Wesson casi11gs. (Tf 105) Detective P~$h also observed

·goug~s in ·the floor beneath the left.and right foot of the victim. (TT2 110). p. dama~eq bullet was .also recovered from the basementdirectly below the kitchen. (IT2 l l6~ 1 l7) The -victirn was holding

a cell phone in .his riSht hand which wasunder bis body; (IT2120). A Ioaded Smith and Wes~n semiautomatic pistol was tucked into the victim's waistband. '(TI'2 121)

Blase Kraeer, a Cit}' of Pittsburgh Detective assigned to the Mobile Crime Unit, testified as a mobile crime expert. ·(IT2 .145-146)· He testified thathe and DetectiveJozwiak were dispatched to 315 Rochelle Street to process a crime scene. (rf2 l.46) He took photographs of the entire area and

·co1fo;:ted physical evidence, including the victim;s gun and several bullet casings. (IT2 147~14~) . He ',

also observed and photographed several bullet strikes onthe floor ofthe kitchen, .including one or two. areas where a bullet completely penetrated through the floor. (IT2 149)

Joseph Bielevicz testified that as part. pf his ernpldyment as a Derective with the City, of Pitrsburghon permanent detail.to the Bureau of Alcohol.Tobacco and.Firearms, he was invesdgaring. an individual named Tanner Shawl on an.. unrelated matter. .(TT 2 184) Based on his. conversation with Shawl,))ieJ~,.,~cz contacted Detective Pugh ..and informedhimthat he may wish to question Shawl regarding rhe investi~_tion,.into Leake's death. (Tl1' i.88)

After inte.rv.ie:,wirtg Shawl, Detective Pugh gained information relative to this case, At trial,

Sha w.i testified that in December 20.10 he travelled toa gun .store in W¢st Mifflin to purchase a. firearm fur Cager, (TI'2 205-206) Shawl had.knownCager for a year or two prior to the purchase. (IT2 206)

·:Cager-and·-Shawl discussed·the idea of purchasing.a gun on severalprior occasions. before Shawl finally relented. (:IT.2 . 207) Cager and :Shawi' went into the. store together and .Ceger identified to Shawl

which gun: he wanted. (tr.z 209) Borh men Jcfr the store together and Cager ·gave Shawl approximately $500.00 while they were i11 the car: Id Shawlreturned.to the store and purchased the

.... .._ .,,.,, '''""'"¥"'" ,. ·-······"'·'·· •,,, _ --···-·-··" __ , ,.._.,. . ,,,-- .. --•¥•'""""'''VO•,•,.rn••• ''' ''''""-'''"• ,,,,.,oo,__,. .......... -.,-.

gut1 thar-Cag_r: ·had selected, :t .40-caliber-Giock handgun. Id. Shawl gave.the Glock fo Cager and drove him home. (IT2 219)

During: the. invesrigaiion into the Leake homicide, Pittsburgh Police Detective Scott .' Evans testified that he Mirandized Cager and aftenvard Cager provided his cell phone number .as. 412.3-1.5.7243. (PT2 243-244) Pittsburgh. Police Officer Paul Able testified that he subsequentlr arrested Cager on this case, recovered two cell phones from him, and gave these phones toDetective. Lang, (IT2 ~33) City of'"Pittsbutgh.Offic'erCyrithia Smith testified tharshe arrested N.oaks and-after 'she Mirandized him, he gaveher personal information including: his cell.phone number; which he stated was ·41.2.277,J888. (Ti'2 336)

Debra Tater, a, scientist with the Allegheny County Medical Examiner's Office, testified as an expert inthe field of firearms and tool marks evaluation. ·(fTZ 276) She. tested four.carrridge casings. stamped FC .:357 SIG which.were recovered from thecrime scene and determined ·that they were all .discharged from. the same firearm. (TT2'.286) 'Based on: comparison with the crime Iab 'database; these casings were determined.to match casingsrecovered .frorn other.crime scenes, (IT2 287) She· also tested four AO S&.W casings stamped .RP arrd an -additiona1 casingsimilarly marked but: coilected and ..packagedseparateiy. fIT2·288) She determined that all tive casingshad been fired from the-same-weapon, and· that weapon WI_\S -a G!qck,. (ITi 2S9<29:0) -Thecasings ·-a:.1so matched the. :40 caliber bullets recovered from the victim's head and chest, (IT2 Z95-Z96) Other lead.fragments removed from Leake at the .au topsy were. unsui table. for comparison purpolies. (i'T2 29~) Leake' s.gun was also test-fired and the test. casings were entered into the.samedatabase; It was: determined that both "his gun and the g!-l.n usedtokill himhad been used.at-another xrirncseencon Julr 3.1, 2011.. (IT2 319)

Robert Levine, the mana~r of the firearms and too} marks section.of the AUe_ghe.ny County Office of the Medical Examiner, testified as .an expert in the field of firearms evidence, (IT2,323)

...... --·-·--- --.---··· -- ----·-··-·---·--- --····"''' ,,,_,... . He; examined Leake's clothes and.determined based on the relative presence or absence of.gunpowder .residue that Leake had been shot from a distance of three to. four feet away. (TT2 327.)

Joseph 'Cirigliano, at the time of this .homicide investigation a Pittsburgh Police Detective attached. to the Mobile Crime Unit.,testi.fkd that he tested .the spent.casings and damaged bullet recovered from. thescene for latent prints: (IT2.344) He did not recoverany fingerprints buttestified that failure to recover .prints from casings· and bullet {ragm~o:cs·is:.not unusual. (IT2 345) Hefurther testified he ran the black Smith and Wessbn revolverrecovered'from Leake and ·it. came back as. stolen out· ..of Bu tler Coun I:)~ on .December 18, 20,0f

The parties stipulated that neither Cager nor Noaks was licensed t<t.carrya :firearm/and neither could have obtained one based on their a~es. (TT2 347) 'Die patties.: further stipulated that detective's

.rerrieved data from cell phones recovered from Cager upon his attest; (TT2 3.48)

Lyle Graber; a police officerwith the Allegheny CountyDistrict Attorney's Office, testified as an expert witness in the. field <if cell phone data analysis. (.t'Ti:_366) He testified that he analyzed the cell phone records for the number· that Cager provided. police when he was attested. (TT2 3§7) Graber also testified that he had the- cell records of the phonenumber associated with Leake. (TT2 369Y Ih addition, he analyzed a "data dump" on Leakes phone.which included all.of the information contained in Leake's phone.at the tirrreitwas.obtained. Id: Graber testified that four calls were made between ..4t2.2 95.041 ·5 (Cager) and 41Z.3 l:2.0304 (Leake) en the- day Leake died. · (IT2 382) All nf the calls originated from Leake's phone: (rr2 38.~) The first: call was made .at 1 :38 p.m. and lasted one

second . Id. The next call was seven seconds Iater in'd.lasted two seconds. (Tl:Z 5~4) The third call was ·placed at 1 :26 a.m. arid had a . duration of two minutes and 4.4 seconds. Id: ThG fourth call

occurred and 2:07 a.m. and lasted five minutesand 41 seconds. ld..

Graber further testified that the records indicated . several calls 'between Cager and Noaks (412.277.3888). (TT2 385). ihe first call from Noak~ to Cager onAugust:13,.2011 occurred at t1:l2

........ .-.-- _ ,, . ....... ........ ---·· .. -· .. ······~·--·-··•"'"' ······-·-- ..-~.... _ . . ._.,, . . · ·--·--······--~----a.m, -and. lasted three seconds, (IT2 386) The next tall was. at 11:43 a.m. and lasted 'three seconds. Jd. The third calf was at 12:02 p.m .. and. was 'three seconds in -duration., Id. .The fourth call Wl\S at 12:03,p.m. and lasted two seconds. Id: The fifth call occurred at ·1:J9 p:rn:,'and lasted one second. ld. .Graber also.testified 'thatfour calls from Cager's .phone on Aug_~st 14, 2011 between 6:00 p.m, and 8:06 _p.m. utilized-cell, wwer059. (TT2 395) Tower 5~)-is situated in the same.generalarea as the murder site arid Cager's mother'shome. (IT2 414)

DISCUSSION.

Appellant alleges this Court erred in 'denying .a motion for an expert witness on eyewitness identification. Appellant cites Co,111J1onwealth/). Walker, 92 A,3d 766 (Pa, 2014).,. (permitting eyewimcss expert testimony under certain -ciite.tunstaricc"s) in support of his position that this Courtabused its discretion· and .as. a resulr.Appcllanr suffered prejudice. This Court decided Appellant's motion on October 29,. 20123, two ye~r.s before. Wal~e.r.-was. decided.' Appdlant; ~P. fijs Brief in Suppprt of .Motion to Appo .int an Expert ·witne:ss, acknowledg~s that. at 'the time of trial; Pennsylvania had a per se · bar against this type of expert testimony. (Brief ·in Support of Motion ro Appoint an Expert Witness, 1.Q/25/12, unnumbered bu~,atpp . .2.1-22t

3 This Courtnotes that the record is incomplete on this Motion 's Hearing for· unknown reasons, The.transcripr pfthe October 29; 2012·Noc::eeding appears to indicate discussion of that Motion at some· earlier point during. that hearing. H owever, · that discussion .is. not co ntained in. the record. (Transcript of Motions hearing on October 29., 20,12; hereinafter MT, at 2) After a ·l;>rief discussion on an unrelated issue.xounsel forCager asks if themotion for the expert witness is denied and this Court stated that it was denied. (1'1T ,6)

"This Court forth.er notes rhat W.qlkfr. was remanded to the trial court for it to determine through a Fryt! hearing whether the· methodology used in that case was generall}'°accepted by scientists .in the relevant field, Ieaving open questions of relevance and pro~atjv~ value. Id. .at 790. At a minimum, this- Court.would hav¢ to 'make the same inquiry .

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Furthermore, of the fivepotential eyewitnesses in the house at the .tirne of-_i:h~ killing, none·

testified.at .trial that ihey,:saw anyone-run past.them after shots-we-re fired. Kiona denied seeing the

-men who-exited-the building afterthe shooting, Valen stated she could not remember.anything.about

the shooring,. 'includingher .statement to. the police. . Ravin.andjacelyn testified that they hid in the

attic, and Montaja did nor testify at all. Since none of the witnesses-made an identification at trial,

the value of the proposed expert testimony was-diminished substantially,

AppelJant nextalleges chat this -Courr erred in denying Appellant's request for information

regarding . the shootingdeath of. Jason Daniels. Appellant . alleges the unsolved homicide investigation .

relaredto Daniels and the killing of.Leake in:· this case are related in some fashion. 'Trial counsel for

Noaks had interviewed St«:;_ph'anie:"'Peeblesi Daniels' cousin, who. said that shortly before Leake's

death> Daniels asked Peebles" to participate in a robbery of Leake. 'She said Daniels mentioned.

something about drug debts or possibly gurfs. Peebles declined to participate. Daniels lacer told

Peebles to look at the news, where she discovered that. Leake.had been killed, The .next day Daniels

told Peebles everything was fine, but.Danielswas killed shortly thereafter. Peebles.. said the. word .on

the. street. was that Daniels killed Leake, then Leakes, friends killed Daniels, The- two murders'

occurred within 24 hours of each other andthe.crime scenes were- within walking, distanceofone

This Court held .an ;;1 camera review of the Daniels homicide police -ihvestigatp'1.y file and

interviewed the· Detectives investigating the Daniels case before .denjing Appellant's motion,

Detectives Pugh.and.Boose statcd.lri·camera that Cag~r·a~d:Npaks killed Leake- over· d:ru~· that Leake

stole from 'Noaks that belonged to Cager. Two of the five. young-women present .at the- time ·of

Leake's shooting wereinterviewed and identified Cager and Noaks . Despitewitness reluctance to

cooperate (as subsequently ob.served by this Court during trial where significant efforts were made

n

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to intimidate witnesses. who wer~ called to testify]," the· witness identifications of Cager and Noaks were solid, had been. made by two- people presentat.rhe .scene.at least one .of whom had known both · men 'most of her life, and included knowled,ge ofthdr 'nicknames-and descriptions of each as young A.fricari.,Americ;in. men -. Both ballistic evidenceand cell..phone records supported the eyewitness: identifications ofthe two men charged in this case. In contrast, the Daniels: investigation uncovered a sin~le suspect who was.described as a·whire,Ital.i;an.or Hispanic male w.earing camouflage clothing: The physical description matched· a suspectnamed RashadWatson, whom :the police interviewed but who was atlarge at the time. 'This ·.Court did.not find evidence.in :t.h.e qng9ing_ investigarion.of Daniels" murder ';that would in any way connect it to Leake's murder and determirred that the potential of. compromising rhiat ongoing.invesdgation bydisclosingpolice sources-was significant. As such> this Court properlydenied the Motion .

.Appellanes. next allegation of error· is that this Court admitted color photogr~phs. of the autop~y which were more prejudicial than probative. "Questions concerning ihe admissibility of evidence-lie within.the sound discretion of the trial court, and we will not reverse the court's decision on such a question-absent a dear abuse-of discretion." Com1110111vealth, ti. Maion'!y,876 A.2d )002, 1006 (Pa.Super.20.05). An abuseof discretion is not merely an error of judgment, buris rather the overriding or misapplication .of.the law, or the exercise of jt1dgment that is manifesily unreasonable, or the result

5 The trial transcript does not begin to re.fleet the ..tension :in the packed courtroom and the significant.problems this Court had controlling the crowd. This trial required the use of additional deputiesboth inside and outside the Courtroom as groups of individuals with no apparent tiesto the case filled.the Courtroom while Commonwealth. witnesses testified. On several occasions, i~di0,duals were. observed.making threatening gestures a~d otheiw.ise:·behaving in ways that appeared to be dearly intended.to.intimidate witnesses. (See, e.g. IT 552) il'tgularly, observers took turns leaving the Courtroomto go into the.stairwell where they would send text-messages before. returning to the Courtroom. U1ti.n}ateJy, this Court had co caution that, if.observers lefr the .roorn during testimony' they would not be permitted. to return until the 'next rec ess as. the- disruptions were ·crea.tlng a distraction to the jury.

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of bia~, prejudice, ill-will or partiality ;·as shown by theevidence or the record. Co.111monwealih v. Cameron, '7$0 A.-2d ·688·! 692. (Pa;S\:.lper.2001).

This Court carefully exercised its .discretion .. .Although the. Court's precautionary measures could -not completely sanitize the inflammatory-nature of the photographs, such is nor the . .test for admissibiliry.. This Court reviewed . each photograph individually and correctly applied the. two-part test to each photograph, This Court then admitted only those crime scene photographs thatit did not: find to. '~e inflammatory .and. autop~.y and crime scene photographs that, while. p,otenti;:i,llx inflammatory, had cvidentiary value the <:;ourt found to be "essential." Commomvi:dlth v. Ba.J/a,rd,60 A.3d 380,._·393-,94 (2013). Of the photographs this Court fourid inflarnmatory.rit admitted only those .deerned necessary to explain to the jury the nature ofthe crime-and allew the Commonwealth to meet its burden of'proof Redundant and unnecessarily gruesome photographs were excluded. This Court gave a cau tionaryinstruction regarding. these pho.to,graph s, • both before they were admitted ·and· in· the. charge. (TI 131-BZ, m:s9S) 11iis 'Court acted within its discretion, and withinthe bounds of rhe decisional law governing th.i~ type-ofphotographic; evidence.

Turning to App!;llan.t's -riext allegation of error; .Appellant alleges 'this Court 'erred in permitting. the Commonwealth to play the recorded statement-of Kiona Sirmons. Appellant- alleges. that, homicide detectives led. Sirmons throughout hc;i;. recorded interview, The a,pplkabl~ rule of evidence is Rule 613 (b), v;,hi_ch states:

Rule :613~ Witness's Prior Inconsistent Statement t9· .Impeach; Witness·'s Prior Consistent Statement to Rehabilitate

(a) Wifness's Prior Inconsistent Statement.to Impeach. A\v1tness may be examined concerning.a piioi inconsistenr statement made by the witness· to impeach the 'witness's: credibility. The-statement need not beshown or its contents.disclosed t6· the witness at thai, timer hut on requestthe sratemcni or· contents must he . sh0wri -or disclosed to an adverse party's attorney.

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(b). Extrinsic Evidence of a Witness's Prior Inconsistent Statement. Unless. the interests of justice otherwise. -require, .extrinsic evidence of .a witness's prior inconsistent statement is adrnissibleonly if, during the examination.ofthe witness,

(t) the starement.Ifwrirterx'is shown to, or if not written, itscontents are disclosed to, the-witness; ,, (2) the witness. is .given. an opportunity to. _explain or deny .the making of the 'statement; and (3) an adverse' party is given an opportunity ~Q questionthe witness.

Pa.R.E. 61°3

The recordedstatement was admitted as a prior inconsistent statement, Appellant aUeges the: Detcctiye's'questfons were ·improperly·lef1ding. Upon review of the transcript of the policeinterview with Sirmons, it is· dear in context that the 'Detective aireidy had 'interviewed her and was: ~sk.ing questions ro allow her ·to confirm important details and summarize her prior off the record statements .. The.staterrrents fr1 the: recorded.interview areadmissible to allow the jury to compare the credibility. of the witness at trial versus the credibility .of -the witness 011: an earlier occasion. Appdlant?s. obj ectien goes to· the weigh t, and not the admissibili ty, of the evidence. "Our courts· 16ng have permitted non-party witnesses to be. . cross-examined on prior statements they have made- when those statements contradict their in-court testimony." Commo11,wrflltb v.. Crmnr)(!y;799 · A-~d 143; l48 (Pa. Super, 2002).

Appellant alleges, that this Court erred in permitting. testimony regarding, . Tanner. Shawl

purchasing a firearm for A.ppdlant, Appellantalleges the testimony of Shawl and Detective Jos~pb Bielecivz' on this matter was irrelevant and highly prejudicial. P.a.R}t, 402 J>.:rov:ides that generally,

.••[a] ll relevant 'evidence 'is admissible" and "[ejvidence that is not relevant is · not admissible." Furthermore, Pa,R,.E. 401 ·_provides the Jollowirig test for relevancy:

· Evidence i.s relevant.if (a). it. has -any tendency to 'make a fact more orIess probable than it would be without the evidence; .and . (b) thefact is of consequencein determining-the, action.

······----- ..·-- .... --..----i?a.R.E: 401.

Thus~.·.the basic re9~~site for the admissibility of any evidence in a case ls .th.~t-it be competent

and relevant. .Comrnot1W.ea/th v. Freid~ 834.A.2d 638, 641 .(Pa;~upe;.2003). Evidence .. is- .relevant if \t logically tends. to establish a material fact in the case or tends to suppo.rt a reasonable inference-

regarding a: material fact. Com,nQtJ111ealth· u: Banies, 871 A2d 812,. 818 (Pa.Su.per.2005). though· relevance has' not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated chat evidence is admissible.if the evidence l~gi~lly or reasonably tends to prove or disprove a material fact 'in 'issue, tends to make .wch a fact more or. less: probable, or affords the basis .for or ~upporq;. a .reasonable inference -or presumption reg?rding the existence.of a- material fact. Fn:idl, 834 A2d at 64'1.

'The testimony of Detective Bielecivz and "Tanner Shawl established that, pdo.r to Lcake's murder; Tanner Shawl illegally obtained a. w~~pon for Cager, ·a AO caliber Glock handgun, a firearm. consistent with ballistic evidence at the scene of this homicide. As· part Ma case based partially on . circumstantial'evidence, -the fact that Ca&erpossessed 'arr illegally obtained firearm that matched the bullets found al the crime 'scene, while not dispositive' in and (if itself, certainly makes it more likely he committed the murder. Assuch, the evidence-is relevant and this Court did not abuseits discretion .

. Appellant alleges-that thevetdictswere:agahi.snhcweighfof the.evidence because no witness. testified under oath that AppGllan:t was.. at the scene, the ballistic and cell -phone testimony. and evidence presented at trial did not establish Appellant's presence a.i the .scenc, The standard.for a "·weight of the evidence" claim is.as follows:

· 'WI'tether a new trial .should. be granted on grounds ~.1:ia,t the.verdict is igainst the weight of the -evidcnce .is .addressed to· the sound -discretion. of the trial judge, and [her] decision wiU not be reversed on appeal unless there has peen an abuse of discretion .... : The test is not whether the. court would have decided .che case in the sameway hut-Whether the verdict is-so contrary to theevidence

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as. to make the award 'of a new trial imperative so ·(hat -right rnay he ·given another opportunity to, prevail

Con1nlonwealthv. Taytor; 471 A.2d l.228, 1230 (Pa.Super r 1984): See also; Co11wi0.niNea(th. v. Nlarkr1. 704 A,2d 1l)95,.1098 (P:LSuper.1997)' (citing <;011m10nive,alf.h u. Simn1om, 662 Azd.621, 630 (Pa. 1995))..

The· verdicts were not against the :.veight of the -evidence. Two witnesses identified -C.ager. and Noaks .to the police shortly after the killing. The. jury could reasonably conclude· that 'the

witnesses' subsequent retraction arrd claim ofmemory Ioss were the· result 0.f obvious attempts at witness intimidation. Furthermore, a reasonable interpretation of the evidence by the jury .is that

Appcllan; was ·jn: thearea at the timeof the killing (based on the cell phone .evidence) .and that.he had previously obtained a weapon that.matched one of the murder-weaponsjbascd on the testimony of Detcctive.Bielecivz and Tanner Shawl). Based on the above, a. j.ury could reasonably conclude that Appellant not only possessed a firearm but used it co kill Leake,

Appellant alleges. that ~he evidence- .was insufficient to establish guilt beyond a reasonable doubt on.both counts, _The test for reviewing a sufficiency .of the evidence claim is well-settled:

[W]hether, viewing the evidence .in 'the light most favorable to the Commonwealth as- verdict winner and drawing-all prope:r inferences favorable to the-Commonwealth, the ·jury could reasonably have determined. all elements of the crime to have been established beyond a reasonable doubt. .. This· standard is equally applicable to cases where the evidence is circumstantial ratherthan direct. so long as the combination of the-evidence Iinks the .accused to ~he crime beycmd a reasonable doubt,

Commonwealth v. Hard.castle,546 A,2d) 101, l 10.5 (Pa. 1988) (citations omitted).

Appellant was: convicted of.Murderin the First Degree, which .is defined as:

§ 2-501. Criminal homicide·

(a) Offense.defined . ..-~.A..:p.er$Oh is guilry··of criminal hornicideif he.intcntiorrally, knowingly, recklessly or negligently causes the .death of another .human being.

18 Pa,C$ ...§ 25.0l.

§ 1.5.02. Murder

' ············ , ,---·-··«···· " , __,,, ............•.• - .. ... ·············-- .. , , ···········-··· .

(a)Murder of the firstdegree.v-A criminal homicide constitutes murder of thefirst degree when it is committed hy an intentional killing.

rs Pa.CS-. § 2502. The element distinguishing first-degree murder front all other degrees of murder is willful,

premeditated, and deliberate intent to kill, which can be proven by circumstantial evidence. Co,;i!l/OtJJVealth v. Wilson, 672 A.2d 293, cert. denied 519 U;S. 951. "[Tjhe jury is free to believe all, part, or none of the evidence presented at trial," Commomli.ealth u: Go11zaletJ._A.3d_> 2015 WL 252446 (Pa, Super, 2015) .. The evidence was sufficient for the jury to find Appellant guilty of first degree murder. Accordingto the testimony, two rnenenrered the house, proceeded directly to the kitchen and shot Leake multiple times; causing his death. Two eyewitnesses identified Cager and Noaks as running out of the kitchen immediately aftet shots were fired. Ballistic evidencefrom the crime scene matched a: gun Cager had obtained illegally. Cell phone records; put Cager arid Noaks in proximity 'to the crime at the time ofits commission, These facts, taken tegether, suffice i:o establish the basis for Appellant's conviction for Murderin the First Degree.

Lastly, A.ppeUant alleges that the Commonwealth failed to pr.ove beyond a reasonable doubt the Carrying a Firearm Witho.ut aLicense charge. Carrying a Firearm \Xlitho\lt a. License isdefined as:

§ 6106. Firearms not to be carried without a license

(a) Offense defined.e-«

(1) Except as provided in. paragraph (2), any person who carries a firearm in any vehicle or any personwho carries. a firearm concealed on or about his p~rson, except in his place ofabode or fixed place of business, without.avalid and lawfully issuedlicense under this chapter commits a felony of the third degree.

18 Pa.C.S, § 6l06(a),

The patties. stipulated that Cager was: a person unable to Iawfully possess a firearm. Tanner Shawltestified that he had purchased a gun with Cager's money arid handed it to Cager .in.Shawl's car.immediately after purchase. Eyewitness identification, cell.phone evidence .and ballistic evidence from the crime scene tie Cager and that, or a very similar gun, .to the murder. These facts suffice to establish the crime of Carrying a. Firearm With<>µta License.

CONCLUSION

.For all of the above reasons; no reversible error occurred and the findings and n1lings of this Court should be AFF1RJ.\1ED.

BY THE COURT:

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CERTiFICATE OF SERVICE

The. undersigned hereby certifies that atrue arid correct copy ofthis OP1Nl0:N was .' mailed

to· the following individuals by firstclass.mail, pO:stage preprud oh ·the 2nd: day. of August, 2016-.

A. Kayleigh Shebs Office o'f Conflict Counsel 429 Forbes Avenue, Suite J 4d 5 Pittsburgh, PA ·15219

l\fichaei'. Streily Office .of the District. Attorney· 401 County Courthouse · 43'6 Grant Street Pittsburgh, PA J 5219

19.

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