J-S16004-13

_____________________________ *Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v. DARNELL THOMAS A/K/A DARYL THURSTON

Appellant No. 1957 EDA 2011

Appeal from the Judgment of Sentence June 30, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013003-2007

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, J.: Filed: April 15, 2013

Appellant, Darnell Thomas a/k/a Daryl Thurston, appeals from the

judgment of sentence entered in the Philadelphia County Court of Common

Pleas, following his jury trial convictions for first-degree murder, kidnapping,

possession of an instrument of crime (“PIC”), abuse of a corpse, and criminal

conspiracy.1 We affirm.

The trial court set forth the relevant facts of this case as follows:

On April 17, 2007, the brutal beating and murder of [Victim], known by friends as Wonkey, occurred at Frankie Flecha’s home located at 4003 Roosevelt Boulevard in Philadelphia. According, to the testimony of Mr. Flecha, his home was used as a place to sell, use and purchase

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1 18 Pa.C.S.A. §§ 2502(a), 2901, 907, 5510, and 903, respectively.

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drugs as well as a place for prostitution and dog fighting. [Appellant], Mr. [Robert] Edgefield, and Mr. [Jason] Edwards were responsible for selling drugs from Mr. Flecha’s home. In exchange, Mr. Flecha received money and drugs. On that day, [Victim] rode his quad [four-wheeler] to the home to purchase crack cocaine. After buying the drugs, [Victim] asked Mr. Flecha about purchasing more drugs. He was told that he would have to wait for [Appellant] to bring the drugs to the house. At this point, [Victim] left the house with Mr. Edwards and Lisa Montalvo to go to a Chinese restaurant. [Appellant] came to Mr. Flecha’s home, and according to Mr. Flecha’s testimony, along with Ms. Mohamed and a person nicknamed Young Gun, stole [Victim’s] quad [four-wheeler]. Before they returned, [Victim] arrived with Ms. Montalvo. Immediately, [Victim] realized his quad was missing. He knocked on the door, Mr. Flecha let him in and [Victim] said, “Where the fuck is my bike?” Mr. Flecha acted as if he did not know who took the quad. While Mr. Flecha continued to deny being involved or having any knowledge about the stolen quad, [Victim] continued to ask him about the whereabouts of the quad. [Victim] then placed a telephone call to an unknown individual and Mr. Flecha called [Appellant] and asked him to return to his home with the quad and talk to [Victim]. [Appellant] and Ms. Mohamed returned to Mr. Flecha’s home and told him that he did not want to sell drugs to [Victim] because he was a “snitch” and did not like him. The men began to argue and as it got out of control, Mr. Edgefield told his girlfriend, Christmas Dorsey, to go upstairs and stay in her room. Once upstairs, Ms. Dorsey heard yelling downstairs and heard [Victim] say he was going to report the drug dealing to police. [Appellant] was also heard saying that the victim was not going anywhere and that he was going to die that day. Ms. Dorsey testified that she saw Mr. Edgefield retrieve a gun from the bedroom[.] At this point, Mr. Flecha observed [Appellant] hit [Victim] with a gun. As [Appellant] tried to hit him again, [Victim] tried to run out of the house. He only made it to the front

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door before being grabbed by Young Gun, [Appellant], and Mr. Edgefield. Mr. Flecha then observed Mr. Edgefield pick up [Victim] and slam him onto the floor. While on the floor, Mr. Edgefield sat on [Victim’s] lower back, grabbed him by his chin and started pulling the front of his body off the floor while [Appellant] kicked [Victim] continuously. According to Ms. Montalvo and Mr. Flecha’s testimony, [Appellant] saw that Ms. Montalvo was witnessing the beating, which caused him to run up to her and grab her by the jaw and neck. [Appellant] reportedly said, “You didn’t see nothing, right bitch?” Mr. Flecha told [Appellant] Ms. Montalvo did not see anything. Mr. Flecha then took Ms. Montalvo and two other individuals upstairs. Ms. Segear could be heard screaming from upstairs to Mr. Flecha that he tell the persons beating [Victim] to stop. [Appellant] then tried to head upstairs, but Mr. Flecha stepped in front of him and said, “Bro, please, that’s my woman, please, she don’t know, she’s scared….” [Appellant] replied, “Control your bitch.” Ms. Segear observed [Appellant] with a gun in his hand while this dispute took place upstairs. [Appellant] then returned downstairs as Mr. Flecha tried to calm Ms. Segear. Mr. Flecha could hear [Victim] screaming in pain saying, “Please don’t kill me.” The beating did not stop. Mr. Flecha returned downstairs to find [Appellant], Mr. Edwards, Ms. Mohamed, and Mr. Edgefield stripping [Victim] naked. [Appellant] turned to [Mr. Flecha] and asked if there was any plastic in the house and was told he could find some in the basement. At some point, Ms. Dorsey decided to use the bathroom and observed Mr. Edgefield and [Appellant] kicking and punching [Victim]. Ms. Dorsey returned to the room, but Mr. Edgefield’s cell phone rang causing her to bring it downstairs. At this point, she observed [Victim] tied up, naked and with a bag over his face. Ms. Mohamed was seen going down into the basement and returning with a sheet of plastic and a children’s bed sheet belonging to Mr. Flecha. Mr. Flecha testified that [Appellant] asked him to help Ms. Mohamed spread out the sheet of plastic next to [Victim] and then move [Victim’s] body on top of the plastic. … Ms. Dorsey at some point came downstairs and observed [Victim] wrapped inside of

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a blanket. According to [Ms. Dorsey], [Appellant] and Mr. Edgefield dragged [Victim’s] body down the basement steps, carried it out of the house, and put it into a car. Mr. Flecha, Ms. Segear, Ms. Montalvo, Ms. Dorsey, and everyone left inside the home failed to call 9-1-1 because they were scared [Appellant and his cohorts] would possibly kill them if they talked to police. On Thursday, April 19, 2007, at approximately 7:30 p.m., two women, Linda Bradford and Janice Brown, went behind an abandoned house located at 15 Hampton Avenue, Trenton, New Jersey, to relieve themselves, where they discovered what appeared to be a body wrapped in a white sheet with plastic around it. They ran to their house across the street and called the Trenton Police Department. Detectives Gaetano Ponticello and Tamika Sommers responded to the call and confirmed there was a body behind the home and subsequently secured the crime scene. Once the body was identified as [Victim’s], Detective Gary Britton, Sergeant Christopher Doyle and Detective Luis Vega of the Trenton Police Department went to the home of Isabella Rosa, the victim’s mother, shortly before midnight on April 20, 2007. After asking Ms. Rosa questions concerning [Victim’s] whereabouts prior to his death, she took the officers to Mr. Flecha’s home. Philadelphia Police Detectives Komorowski and Alminde of the 24th and 25th Police Districts of Philadelphia also accompanied them. Upon arriving, the officers observed people looking out the windows of the home and decided to knock on the door to find out what was going on. Ms. Segear answered the door and was told by the officers they were conducting an investigation concerning the murder of [Victim]. She then told the officers about the beating that took place inside the home. Officers also questioned Ms. Dorsey and Ms. Montalvo. The officers made arrangements to take these three women to the Roundhouse….. The autopsy of [Victim’s] body revealed that he had been beaten unconscious, tied with wire and cables, stripped naked and wrapped in a sheet and bags, removed from Philadelphia while possibly still alive, and at some point shot five times, four of those to the head. He also had

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been sexually assaulted as semen was found in his mouth. The manner of death was deemed to be homicide.

(Trial Court Opinion, filed March 12, 2012, at 2-6) (footnotes omitted).

Following trial a jury convicted Appellant of first-degree murder, criminal

conspiracy, kidnapping, PIC, and abuse of corpse, on June 17, 2011. On

June 30, 2011, the trial court sentenced Appellant to incarceration for life

without the possibility of parole for first-degree murder. The court also

sentenced Appellant to concurrent terms of twenty (20) to forty (40) years’

incarceration for criminal conspiracy, ten (10) to twenty (20) years’

incarceration for kidnapping, two and one-half (2½) to five (5) years’

incarceration for PIC, and one (1) to two (2) years’ for abuse of a corpse.

Appellant filed post-sentence motions on July 6, 2011, which the court

denied the same day. On July 22, 2011, Appellant timely filed a notice of

appeal. The court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

complied.

Appellant raises the following issues for our review:

IS [APPELLANT] ENTITLED TO AN ARREST OF JUDGMENT ON THE CHARGE OF MURDER IN THE FIRST DEGREE, CRIMINAL CONSPIRACY AND RELATED CHARGES WHERE THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE VERDICT? IS [APPELLANT] ENTITLED TO A NEW TRIAL ON ALL CHARGES WHERE THE VERDICT IS NOT SUPPORTED BY THE GREATER WEIGHT OF THE EVIDENCE?

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IS [APPELLANT] ENTITLED TO AN ARREST OF JUDGMENT OR A NEW TRIAL AS THE PHILADELPHIA COURT OF COMMON PLEAS LACKED JURISDICTION OVER THE MURDER BILL IN THIS CASE? IS [APPELLANT] ENTITLED TO A NEW TRIAL AS THE RESULT OF COURT ERROR WHEN IT FAILED TO GIVE AN ACCOMPLICE CHARGE WITH REGARD TO COMMONWEALTH WITNESS FRANKIE [FLECHA], WHERE THE EVIDENCE, IF BELIEVED, DEMONSTRATED THAT [FLECHA] WAS INEXTRICABLY INVOLVED IN THE PLANNING, SCHEMING, AND CARRYING OUT OF THE CRIMINAL ACTIONS ALLEGED? IS [APPELLANT] ENTITLED TO A NEW TRIAL AS THE RESULT OF COURT ERROR WHERE THE TRIAL COURT, OVER OBJECTION, PERMITTED DETECTIVE LUIS VEGA OF THE TRENTON POLICE DEPARTMENT TO BE QUESTIONED ABOUT AND TO ANSWER QUESTIONS REGARDING AN ALLEGED, PRIOR CONSISTENT STATEMENT THAT HE TOOK FROM WITNESS CHRISTMAS DORSEY, THAT WAS NOT REDUCED TO WRITING NOR SIGNED AND ADOPTED AND WHICH VIOLATED [APPELLANT’S] RIGHT OF CONFRONTATION?

(Appellant’s Brief at 3).2

After a thorough review of the record, the briefs of the parties, the

applicable law, and the reasoned opinion of the Honorable Jeffrey P.

Minehart, we conclude Appellant’s first and second issues merit no relief.

(See Trial Court Opinion, filed March 12, 2012, at 6-12) (finding: (1)

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2 Appellant raised all five issues in two timely filed and served Rule 1925(b) statements, but the trial court addressed only issues one and two in its opinion. Nevertheless, we need not remand the case for an additional opinion, because we can conduct meaningful review of Appellant’s issues three through five directly from the certified record. See Commonwealth v. Jeter, 937 A.2d 466, 467 n.4 (Pa.Super. 2007).

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Appellant declared Victim was “snitch” and he would die that day; Appellant

struck Victim with gun and along with cohorts, savagely beat him, directed

binding and wrapping of his body in plastic, removed his body from scene,

placed it in car, and transported Victim’s body from Philadelphia to Trenton,

New Jersey; when considered along with autopsy showing Victim was beaten

to death, shot five times, and sexually assaulted, evidence was sufficient to

support Appellant’s convictions for first-degree murder, criminal conspiracy,

kidnapping, PIC, and abuse of corpse; (2) four witnesses testified Appellant

beat Victim and helped to strip, wrap, and tie his body; DNA evidence could

not exclude Appellant as contributor to blood found on cords wrapped

around Victim’s body; evidence supported jury’s finding of guilt, and verdict

did not shock sense of justice).

In his third issue, Appellant claims the savage beating Victim received

in Philadelphia did not cause his death, and multiple gunshot wounds led to

Victim’s death at an undetermined location. Appellant declares he was in

the shower when others removed Victim’s body from the scene of the

beating, and it is unclear whether any of the people in Philadelphia, who

beat Victim unconscious, transported him to Trenton, New Jersey. Appellant

asserts the trial court lacked jurisdiction over his first-degree murder charge

because it is unclear whether Victim was murdered in Pennsylvania or New

Jersey, and it is unknown who fired the fatal shots. Appellant insists the trial

court improperly ruled Pennsylvania courts had jurisdiction as a matter of

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law, and the issue should have been submitted to the jury. Appellant

concludes he is entitled to an arrest of judgment or a new trial. We cannot

agree.

As a prefatory matter, we must determine whether Appellant properly

preserved all specific matters raised in his third issue for review. See

Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178 (2006), cert.

denied, 549 U.S. 1171, 127 S.Ct. 1131, 166 L.Ed.2d 900 (2007) (stating

intermediate appellate court can sua sponte raise waiver under Rule 1925).

Where a trial court directs a defendant to file a concise statement of errors

complained of on appeal, any issues not raised in that statement shall be

waived. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa.Super. 2008),

appeal denied, 600 Pa. 773, 968 A.2d 1280 (2009).

“Jurisdiction is purely a question of law; the appellate standard of

review is de novo and the scope of review plenary.” Commonwealth v.

Seiders, 11 A.3d 495, 496-97 (Pa.Super. 2010). Controversies that arise

from violations of the Crimes Code fall under the original jurisdiction of the

courts of common pleas. Id. at 497. For a court to exercise jurisdiction

over a criminal case, some overt act toward the commission of the crime

must have occurred within the county where the court sits. Id. Further, 18

Pa.C.S.A. § 102(a) provides in pertinent part:

§ 102. Territorial applicability (a) General rule.—Except as otherwise provided in this section, a person may be convicted under the law of this

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Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable if either:

(1) the conduct which is an element of the offense or the result which is such an element occurs within this Commonwealth;

* * *

(4) conduct occurring within this Commonwealth established complicity in the commission of, or an attempt, solicitation or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of this Commonwealth;

* * *

18 Pa.C.S.A. § 102(a)(1), (a)(4).

Instantly, Appellant openly declared his intent to kill Victim, struck him

with a handgun, and beat him unconscious in Philadelphia. Appellant and

his cohorts wrapped Victim in bed sheets and plastic before dragging

Victim’s body to a car. Later, Victim was found dead in Trenton, New Jersey.

Thus, Appellant’s crimes began in Philadelphia, and his conduct in

Philadelphia showed complicity in Victim’s murder. Therefore, the

Philadelphia Court of Common Pleas had jurisdiction over Appellant’s

criminal case.3 See 18 Pa.C.S.A. § 102(a)(4), Seiders, supra.

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3 With respect to Appellant’s claim the court should have submitted the jurisdiction issue to the jury, Appellant failed to raise this specific aspect of the issue in his Rule 1925(b) statement, so it is waived. See Bullock, supra.

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In his fourth issue, Appellant contends Mr. Flecha argued violently with

Victim about the stolen four-wheeler, allowed Appellant and cohorts to beat

Victim in his home, and rendered assistance to Appellant and cohorts by

providing plastic and a bed sheet. Appellant asserts Mr. Flecha admitted

“going along with all of it” at trial, fled when police arrived at his home, and

when questioned by police, he neglected to mention his violent argument

with Victim. Appellant insists he was entitled to an accomplice/corrupt

source jury charge as to Mr. Flecha’s testimony. Although Appellant’s

counsel made the request at trial, Appellant complains the court wrongfully

denied the request. Appellant argues Mr. Flecha was the Commonwealth’s

central witness, the Commonwealth’s other witnesses were under Mr.

Flecha’s control, and the court’s failure to provide an accomplice/corrupt

source instruction was not harmless error. Appellant concludes he is entitled

to a new trial on this basis. We disagree.

“There is no requirement for the trial judge to instruct the jury

pursuant to every request made to the court.” Commonwealth v.

Newman, 555 A.2d 151, 158-59 (Pa.Super. 1989), appeal denied, 540 Pa.

580, 655 A.2d 512 (1995). “In deciding whether a trial court erred in

refusing to give a jury instruction, we must determine whether the court

abused its discretion or committed an error of law.” Commonwealth v.

DeMarco, 570 Pa. 263, 271, 809 A.2d 256, 260-61 (2002).

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“Jury instructions must be supported by the evidence of record as

instructions regarding matters that are not before the court serve no

purpose but to confuse the jury.” Commonwealth v. Bruce, 717 A.2d

1033, 1037 (Pa.Super. 1998), appeal denied, 568 Pa. 643, 794 A.2d 359

(1999). “An accomplice charge is required only when the evidence permits

an inference that the witness was an accomplice. The justification for the

instruction is that an accomplice may inculpate others out of a reasonable

expectation of leniency.” Commonwealth v. Corley, 816 A.2d 1109, 1114

(Pa.Super. 2003). The “corrupt source” charge in particular is designed

specifically to address situations where one accomplice testifies against the

other to obtain favorable treatment. It directs the jury to view the

testimony of an accomplice with disfavor and accept it only with care and

caution.” Commonwealth v. Smith, 609 Pa. 605, 662, 17 A.3d 873, 906

(2011). “The charge is warranted where the evidence is sufficient to present

a jury question with respect to whether the Commonwealth’s witness is an

accomplice. An accomplice is one who aids or agrees or attempts to aid

another person in planning or committing the offense.” Commonwealth v.

Busanet, ___ Pa. ___, ___, 54 A.3d 35, 69-70 (2012). The charge is

unnecessary absent justification for the requested instruction.

Commonwealth v. Hall, 867 A.2d 619, 630 (Pa.Super. 2005). Where an

accomplice implicates the defendant, and the court fails to give a requested

“corrupt and polluted source” jury instruction, the error is harmless if there

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is ample corroborating evidence from other witnesses. Commonwealth v.

Young, 561 Pa. 34, 65, 748 A.2d 166, 182 (1999).

Instantly, Mr. Flecha testified he had witnessed the events of the

beating, informed Appellant’s cohort there was plastic in the basement, and

helped to spread the plastic on the floor. Mr. Flecha did not hit Victim, help

restrain him, move him onto the plastic, or touch his body. Therefore, no

evidence suggests Mr. Flecha aided or attempted to aid Appellant and

cohorts in the commission of the crimes. Thus, the court properly refused to

give the jury an accomplice/corrupt source instruction with respect to Mr.

Flecha’s testimony. See Hall, supra. Moreover, Ms. Dorsey, Ms. Montalvo,

Ms. Segear, and Mr. Flecha all independently testified how they had

witnessed Appellant savagely beat, strip, tie and wrap Victim’s body in

plastic. Therefore, even if the evidence could possibly support an inference

that Mr. Flecha was criminally involved in the events, the court’s refusal to

give the accomplice instruction regarding his testimony would be harmless

error. See Young, supra.

In his fifth issue, Appellant argues Trenton Police Department

Detective Luis Vega interviewed Ms. Christmas Dorsey in Philadelphia during

his investigation and reduced Ms. Dorsey’s interview to a written statement

but used only his memory to do so. Appellant complains Ms. Dorsey did not

sign the statement, and the statement was not recorded verbatim.

Appellant contends the court improperly allowed Detective Vega’s testimony

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about Ms. Dorsey’s statement at trial. Appellant further asserts Ms. Dorsey’s

statement as reported by Detective Vega identified “Rob” and Appellant as

participants in the beating; Appellant argues the testimony at trial to that

effect was inadmissible because it was based on the improperly documented

witness statement. Appellant complains the Commonwealth was attempting

to impeach its own witness, Ms. Dorsey, when questioning Detective Vega at

trial. Appellant concludes the court improperly admitted Detective Vega’s

testimony as a prior consistent statement, and Appellant is entitled to a new

trial. We disagree.

Admission of evidence is within the trial court’s sound discretion, and

will not be reversed absent a determination the court’s discretion was

abused. Commonwealth v. Huddleston, 55 A.3d 1217, 1222-23

(Pa.Super. 2012). “An abuse of discretion is not a mere error in judgment

but, rather, involves bias, ill will, partiality, prejudice, manifest

unreasonableness, or misapplication of law.” Commonwealth v. Lowry,

55 A.3d 743, 752 (Pa.Super. 2012). The Pennsylvania Rules of Evidence

provide that a prior consistent statement is admissible for rehabilitation

purposes to rebut an express or implied charge of fabrication, bias, improper

influence or motive, or faulty memory. Pa.R.E. 613(c); Commonwealth v.

Baumhammers, 599 Pa. 1, 51, 960 A.2d 59, 89-90 (2008).

Instantly, Ms. Dorsey identified “Rob” and Appellant as participants in

the savage beating of Victim. Counsel for Appellant and his co-defendants

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cross-examined Ms. Dorsey extensively about whether she knew Appellant’s

cohort as “Rob” or “Boz.” Defense counsel also questioned Ms. Dorsey about

her recollection of events, and whether she told Philadelphia police that

“Rob” had participated in beating Victim because she was mad at him. Thus,

Appellant attacked Ms. Dorsey’s credibility by suggesting fabrication, faulty

memory, and bias. Subsequently, the Commonwealth called Detective Vega

to the stand, and he testified Ms. Dorsey had identified “Rob” and Appellant

as participants in the beating of Victim when Detective Vega interviewed her

shortly after the discovery of Victim’s body. Therefore, Ms. Dorsey’s

statement to Detective Vega constituted a prior consistent statement used to

rebut Appellant’s suggestion of fabrication, bias, and faulty memory. The

trial court properly admitted Detective Vega’s testimony. See Pa.R.E.

613(c); Baumhammers, supra. Based upon the foregoing, Appellant’s

claims merit no relief. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.