OPINION BY STEVENS, P.J.:
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Chester County following Appellant's conviction by a jury on the charges of first-degree murder, 18 Pa.C.S.A. § 2502(a), and possessing instruments of crime, 18 Pa.C.S.A. § 907(a). Appellant contends (1) the trial court erred in denying Appellant's motion to dismiss on the basis the Commonwealth met its burden of proving it did not "use or derivatively use" Appellant's immunized grand jury testimony, (2) the trial court erred in permitting defense witness Ataya Shabazz to testify on cross-examination as to prior consistent statements made by Commonwealth witness Adrienne Beckett, and (3) the trial court erred in limiting Appellant's cross-examination of Commonwealth witness David Johnson. We affirm.
The relevant facts and procedural history are as follows: During the evening of October 19, 2005, in an alley in the city of Coatesville, Pennsylvania, Charles Corey "Peen" Jennings was shot and killed. During the investigation, on October 26, 2006, the Commonwealth subpoenaed Appellant
On November 16, 2006, the Commonwealth obtained an order compelling Appellant to appear before the grand jury under the grant of immunity. Thus, on that same date, Appellant again appeared before the thirteenth investigating grand jury and, while testifying about the death of Mr. Jennings, Appellant implicated himself in the murder.
On November 24, 2007, the police arrested Appellant, who filed a counseled motion seeking to dismiss the prosecution under the auspices of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and its progeny. The Commonwealth filed a reply in opposition to the motion to dismiss, and the trial court held numerous evidentiary hearings on the matter at which several police officers and members of the Chester County District Attorney's Office testified. For instance, Assistant District Attorney Peter Hobart confirmed Appellant had received immunity before the thirteenth investigating grand jury and, on November 16, 2006, ADA Hobart examined Appellant before the grand jury. N.T. 3/12/08 at 40. At the conclusion of Appellant's grand jury testimony, in which Appellant implicated himself as the shooter, ADA Hobart, accompanied by Detective Kevin Campbell, so informed his supervisor, Deputy District Attorney Steve Kelly, who in turn informed District Attorney Joseph Carroll regarding the substance of what had transpired during Appellant's grand jury testimony. N.T. 3/12/08 at 40-41, 52. DA Carroll ordered ADA Hobart and Deputy DA Kelly not to discuss the circumstances of the case with anyone, and ADA Hobart specifically testified he never violated this order. N.T. 3/12/08 at 41. ADA Hobart testified he was not involved in the decision to charge Appellant with the murder of Mr. Jennings, he did not assist in the investigation of Mr. Jennings' homicide after November 16, 2006, and he "remained silent as to the contents of [Appellant's] immunized testimony." N.T. 3/12/08 at 43.
On cross-examination, ADA Hobart testified that, prior to examining Appellant before the grand jury, Detective Campbell told ADA Hobart that Appellant and David Johnson were both present during Mr. Jennings' homicide. N.T. 3/12/08 at 45. Additionally, Detective Campbell told ADA Hobart Mr. Jennings had stolen Appellant's chain prior to this death and, on the date of the shooting, there was an altercation between Mr. Jennings, Appellant, and Mr. Johnson. N.T. 3/12/08 at 45. ADA Hobart admitted he was "surprised" by the testimony he elicited from Appellant before the grand jury. N.T. 3/12/08 at 52.
Assistant District Attorney Thomas Ost-Prisco testified that, in late November of 2006, Deputy DA Kelly reassigned him to Mr. Jennings' homicide. N.T. 3/12/08 at 65. He was not given a specific reason as to why the case was assigned to him; however, he was specifically instructed that he could not discuss the case with Deputy DA Kelly, Deputy DA Ron Yen, Detective Campbell, ADA Hobart or DA Carroll. N.T. 3/12/08 at 66. ADA Ost-Prisco testified he did not violate the instruction. N.T. 3/12/08 at 67. He indicated he did not have much information when the case was assigned to him; however, he was told that he could speak to Detective Marty Quinn, Detective Kevin Dykes, Chief Albert DiGiacamo, and Detective Frank Martin. N.T. 3/12/08 at 67. ADA Ost-Prisco was aware Appellant's girlfriend, Adrienne Beckett, had testified before the grand jury and he reviewed her
ADA Ost-Prisco indicated he was going to be prosecuting Appellant, and he summarized the evidence, which he intended to present at Appellant's trial. For instance, he intended to call as a witness Mr. Johnson, who began cooperating with the police in January or February of 2007. N.T. 3/12/08 at 74. Mr. Johnson gave the police a detailed statement of what occurred on the night of Mr. Jennings' murder, including the fact Appellant shot Mr. Jennings multiple times. N.T. 3/12/08 at 74.
Mr. Johnson's cooperation led to his girlfriend, Ataya Shabazz, wearing a body wire to record a conversation she had with Adrienne Beckett, which in turn led to Ms. Beckett giving the police a statement in March of 2007. N.T. 3/12/08 at 74. ADA Ost-Prisco intended to call Ms. Beckett as a witness so that she could testify consistently with her March of 2007 statement. In her statement, Ms. Beckett indicated that Mr. Jennings had stolen a gold chain from Appellant, and, after the murder, Appellant told Ms. Beckett he "did what [he] had to do." N.T. 3/12/08 at 71. Additionally, she informed the police that, a few hours after the homicide, she drove with Appellant to Maryland, where she watched as Appellant dumped a plastic shopping bag into a dumpster in a parking lot behind a strip mall. N.T. 3/12/08 at 72.
ADA Ost-Prisco further intended to call as witnesses Dante Carter, Francis Washington, and Duron Peoples, all of whom would testify about Mr. Jennings taking Appellant's gold chain, as well as investigating police officers and the medical examiner who performed the autopsy of Mr. Jennings. N.T. 3/12/08 at 75.
On cross-examination, ADA Ost-Prisco testified he sought to secure Wendell Fields' testimony before the investigating grand jury and Deputy DA Kelly was not involved in the matter. N.T. 3/12/08 at 79-80. ADA Ost-Prisco explained that, before he was assigned to prosecute the homicide of Mr. Jennings, Mr. Fields had given a statement to the police indicating that, the day after the murder, Mr. Fields had breakfast with Appellant, who informed him Mr. Johnson had shot Mr. Jennings. N.T. 3/12/08 at 94. ADA Ost-Prisco further explained Mr. Fields' statement was the "beginning point" of his investigation and he was "looking at [Mr.] Johnson as being the possible shooter." N.T. 3/12/08 at 97. That is, at the time ADA Ost-Prisco was assigned to handle the case, which was after Appellant had implicated himself before the grand jury, he was not specifically looking at Appellant as the shooter. N.T. 3/12/08 at 97. However, ADA Ost-Prisco later concluded Mr. Fields was lying about Appellant's claims of innocence based on subsequent statements made by Kurtis Allen and Daryl Buchanan. N.T. 3/12/08 at 94. Specifically, Mr. Allen told authorities that, while he was incarcerated in the Chester County Prison, he spoke to Mr. Fields, who told him Appellant had confessed to him that he shot Mr. Jennings and Mr. Fields concocted a story to deflect the blame onto Mr. Johnson. N.T. 3/12/08 at 94-95. Additionally, following the interview with Mr. Allen, the police interviewed Mr. Buchanan, who reported that, after the homicide, Mr. Fields told Mr. Buchanan Appellant had killed Mr. Jennings. N.T. 3/12/08 at 96.
ADA Ost-Prisco admitted he entered into negotiations with Mr. Johnson as to an unrelated case in order to "get him to talk" about the shooting of Mr. Jennings. N.T. 3/12/08 at 87-89. At this point, ADA Ost-Prisco was "still operating under the assumption that [Mr. Johnson] might have
ADA Ost-Prisco admitted that, while he was never specifically advised Appellant offered immunized grand jury testimony, it was an assumption he formed shortly after he was assigned to handle Mr. Jennings' homicide. N.T. 3/12/08 at 81. ADA Ost-Prisco first learned definitively that Appellant offered immunized grand jury testimony when he read a newspaper article, which discussed Appellant's motion to dismiss. N.T. 3/12/08 at 122-23.
As to what investigative action the district attorney's office took after Appellant implicated himself during his immunized testimony before the grand jury, ADA Ost-Prisco specifically testified as follows on cross-examination:
N.T. 3/12/08 at 99.
Chester County Detective Kevin Dykes testified that, on October 20, 2005, the day after Mr. Jennings was killed, he was assigned to investigate the homicide and, as of the date of the hearing, he was still actively involved in the investigation. N.T. 3/12/08 at 145. Detective Dykes was involved in the thirteenth grand jury's investigation into Mr. Jennings' homicide, and more specifically, it was his role to conduct interviews of possible witnesses. N.T. 3/12/08 at 146. Regarding transcripts from the grand jury, Ms. Beckett's transcript was the only one reviewed by Detective Dykes. N.T. 3/12/08 at 146. He specifically testified that, aside from Ms. Beckett's testimony, he was unaware of any other information stemming from the grand jury's investigation of Mr. Jennings' homicide. N.T. 3/12/08 at 147. Regarding Appellant's involvement with the grand jury, the relevant exchange occurred during Detective Dykes' direct examination:
N.T. 3/12/08 at 147-48. Detective Dykes discussed the fact that, whenever the Chester County Murder Task Force discussed Mr. Jennings' murder, individuals who had been involved with the thirteenth investigating grand jury were required to leave the room. N.T. 3/12/08 at 150. Such individuals included Deputy DA Kelly, Deputy DA Yen, ADA Hobart, and Detective Campbell. N.T. 3/12/08 at 150.
Detective Dykes was involved with Appellant's arrest. N.T. 3/12/08 at 150. In summarizing his investigation, Detective Dykes gave a chronological account of his findings. He testified that, on September 15, 2006, Ms. Beckett informed the police that her son had heard "on the streets" Appellant may have had "something to do with the death of Mr. Jennings." N.T. 3/12/08 at 153. Moreover, on October 13, 2006, Mr. Fields told the police that Appellant told him Mr. Johnson had shot Mr. Jennings in retaliation for him stealing Appellant's gold chain. N.T. 3/12/08 at 155. In February of 2007, Detective Dykes met with Mr. Johnson, who informed the police he was a witness to the homicide of Mr. Jennings but that he would not give a statement until he had the opportunity to consult with his attorney. N.T. 3/12/08 at 156. During the meeting, Mr. Johnson said to Detective Dykes, "[T]his was all over a stupid chain." N.T. 3/12/08 at 156.
Detective Dykes met with Mr. Johnson later in the month of February of 2007, at which time Mr. Johnson gave a detailed account of what transpired on the night Mr. Jennings was murdered. N.T. 3/12/08 at 157. In particular, Mr. Johnson implicated Appellant as shooting Mr. Jennings, who attempted to flee. N.T. 3/12/08 at 157. Mr. Johnson told the detective his girlfriend, Ataya Shabazz, told him Ms. Beckett told her Appellant admitted he killed Mr. Jennings. N.T. 3/12/08 at 160. Mr. Johnson told Detective Dykes he was coming forward with information about the murder because, when he was incarcerated in the county prison on unrelated charges, a corrections officer told him that he was "being blamed" for killing Mr. Jennings. N.T. 3/12/08 at 160. Mr. Johnson decided to come forward to correct any misinformation, which may have been provided to the police. N.T. 3/12/08 at 161.
In February of 2007, Detective Dykes met with Ms. Shabazz, who confirmed Ms. Beckett had told her Appellant admitted he shot Mr. Jennings. N.T. 3/12/08 at 161. Ms. Shabazz agreed to wear a body wire, and on February 21, 2007 and March 22, 2007, the police recorded conversations she had with Ms. Beckett. N.T. 3/12/08 at 162. On April 7, 2007, Detective Dykes watched a video recording of Mr. Jennings' funeral and he observed as Mr. Peoples placed an item, presumably Appellant's gold chain, in the coffin. N.T. 3/12/08 at 162-63. The police later exhumed Mr. Jennings' coffin and discovered inside Appellant's gold chain.
On April 26, 2007, Ms. Beckett made a statement to the police wherein she admitted
After summarizing his investigation, Detective Dykes specifically testified he never discussed the murder of Mr. Jennings with anyone who had information concerning Appellant offering immunized testimony before the thirteenth investigating grand jury. N.T. 3/12/08 at 173.
On cross-examination, Detective Dykes confirmed that, as of early fall 2006, the police had statements from four people, who indicated Mr. Johnson had told them he had killed Mr. Jennings. N.T. 3/12/08 at 177. Detective Dykes testified that, initially, the police sought Appellant's cooperation because they believed Appellant had witnessed Mr. Johnson shooting Mr. Jennings. N.T. 3/12/08 at 177. Thus, with the expectation Appellant had been a witness to the shooting, "steps were put in motion to compel [Appellant] to testify before the grand jury[.]" N.T. 3/12/08 at 178. Detective Dykes confirmed that, prior to October 1, 2006, police had approached Appellant's attorney asking him to encourage Appellant to cooperate as a witness to the shooting, and the "state of belief of the law enforcement community" was that Appellant was a witness but not the suspected shooter. N.T. 3/12/08 at 179.
Prior to the issuance of Appellant's subpoena, Detective Dykes, Detective Quinn, and Deputy DA Kelly knew Appellant was going to be compelled to appear before the grand jury to testify as to what he witnessed on the night of the murder. N.T. 3/12/08 at 179. Detective Dykes testified he served the subpoena upon Appellant for his grand jury appearance in October of 2006; however, he did not serve the subpoena upon Appellant for his November 16, 2006 grand jury appearance. N.T. 3/12/08 at 180. Detective Dykes confirmed he knew Appellant had appeared before the grand jury and then "all of a sudden" he was directed not to speak to certain people regarding the investigation of Mr. Jennings' murder. N.T. 3/12/08 at 180-81. Detective Dykes testified he had no idea why he was not permitted to speak to these people about the murder; however, there were "a lot of thoughts that crossed [his] mind" as to why he could not speak to them any longer. N.T. 3/12/08 at 181. Appellant offering immunized testimony was "one of those thoughts." N.T. 3/12/08 at 181-82. The following relevant exchange then occurred:
N.T. 3/12/08 at 182-186.
Detective Dykes testified that, at some point, ADA Ost-Prisco asked to be briefed about the murder of Mr. Jennings and they never discussed why he was reassigned to the case. N.T. 3/12/08 at 191-94.
On redirect examination, the following relevant exchange transpired:
N.T. 3/12/08 at 200-201.
Coatesville City Police Detective Martin Y. Quinn testified he has been involved in the investigation of Mr. Jennings' murder from the moment it occurred on October 19, 2005; however, he was neither involved in the grand jury investigation nor reviewed any grand jury transcripts. N.T. 3/12/08 at 204-05. He indicated his awareness that the grand jury convened in the latter part of 2006, Appellant was subpoenaed to testify, and at some point, his chief informed him at a task meeting that "a Chinese Wall [had been] erected." N.T. 3/12/08 at 204-07. His chief did not tell him why the "Chinese Wall" had been erected; however, he was ordered not to speak with certain detectives and members of the District Attorney's Office about Mr. Jennings' murder. N.T. 3/12/08 at 208. Detective Quinn never violated his chief's instructions and continued investigating the murder without speaking to the prohibited individuals. N.T. 3/12/08 at 208-09, 227. Detective Quinn's testimony concerning the police's investigation of Mr. Jennings' murder was substantially similar to Detective Dykes' testimony on the matter.
On cross-examination, Detective Quinn admitted that, on August 15, 2006, the police went to Appellant's attorney's office seeking a statement from Appellant. N.T. 3/12/08 at 231. Detective Quinn indicated that, at the time, it appeared Mr. Johnson and Appellant were both present during the shooting and the police wanted to know "a little bit more about" each person's actions. 4/18/08 at 256. On August 8, 2006, Detective Quinn wrote an interoffice email summarizing information about the shooting. N.T. 4/18/08 at 259. The email indicated a witness had made statements relating that Appellant had Mr. Jennings killed. N.T. 4/18/08 at 259. Since Appellant's attorney would not produce Appellant for a statement, the police took actions to compel Appellant to "say what he knew about the case." N.T. 4/18/08 at 259-60. Detective Quinn admitted he knew Appellant had asserted his Fifth Amendment privilege before the grand jury in October of 2006, and Appellant appeared a second time, although he did not know when Appellant appeared the second time. N.T. 4/18/08 at 270-73.
Detective Quinn explained the police were investigating five different homicides at that time and he moved on to other cases after Appellant would not make a statement. N.T. 4/18/08 at 273. At some point, his chief informed him a "Chinese Wall" had been erected and he was told to continue his investigation as if "nothing ever happened." N.T. 4/18/08 at 278. Detective Quinn testified he did not know why the "Chinese Wall" had been erected, although he assumed something unexpected had happened before the grand jury. N.T. 4/18/08 at 293. Detective Quinn specifically denied knowing that Appellant had testified with immunity before the grand jury, and in fact, he first learned Appellant had offered immunized testimony when he read a newspaper article related to Appellant's motion to dismiss. N.T. 4/18/08 at 280.
After he was told a "Chinese Wall" had been erected, Detective Quinn continued investigating the murder with the focus being on Mr. Johnson as the most likely suspect; however, statements made by various people pointed to Appellant as the shooter. N.T. 4/18/08 at 294.
On redirect examination, Detective Quinn testified:
N.T. 4/18/08 at 307-08.
District Attorney Joseph Carroll confirmed Appellant received immunity to testify before the grand jury and, following Appellant's testimony, ADA Hobart orally provided DA Carroll with a summary of its content. N.T. 4/18/08 at 317. DA Carroll immediately instructed certain members of the district attorney's office and police not to speak to anyone else regarding the situation and to have no further involvement in the investigation. N.T. 4/18/08 at 320-22. DA Carroll testified the instruction pertained to him, and he has never revealed what he learned about Appellant's immunized grand jury testimony to anyone. N.T. 4/18/08 at 322-23. DA Carroll did not have any involvement in the arrest of Appellant, he took steps to isolate himself from the subsequent murder investigation, and he did not attend any murder task force meetings pertaining to Mr. Jennings' homicide. N.T. 4/18/08 at 323, 353.
On cross-examination, DA Carroll admitted that he authorized the request for Appellant's grand jury immunity order because he did not believe Appellant "was a killer" and he sought whatever information he might have regarding the shooting. N.T. 4/18/08 at 329. DA Carroll indicated he was "satisfied that it was very unlikely [Appellant] was a potential defendant[; however] [he] still did not know whether he would be of any use as a witness[.]" N.T. 4/18/08 at 331. After Appellant gave his immunized grand jury testimony, DA Carroll reassigned Mr. Jennings' homicide to a new prosecutor in order to protect Appellant's rights. N.T. 4/18/08 at 235. DA Carroll admitted he was not certain what conclusion the investigators would draw from the fact certain people could no longer participate in the investigation; however, he hoped the investigators would just move on thinking there was a "mysterious problem with the grand jury." N.T. 4/18/08 at 347. For those investigators who were not involved in the grand jury, DA Carroll did not tell them Appellant had taken the stand, let alone offered immunized grand jury testimony. N.T. 4/18/08 at 347. "[He] told them [he] couldn't tell them anything about what happened before the grand jury." N.T. 4/18/08 at 347.
Deputy DA Stephen Kelly indicated immunity was sought for Appellant because the investigation tended to reveal Appellant was a witness to the murder. N.T. 4/18/08 at 357. In particular, Deputy DA Kelly pointed to various witnesses who informed the police Mr. Johnson had confessed to the murder, as well as Mr. Fields' statement indicating Appellant had witnessed Mr. Johnson shooting Mr. Jennings. N.T. 4/18/08 at 358-360. Deputy DA Kelly testified he never violated DA Carroll's instructions to remain silent as to Appellant's immunized grand jury testimony, and he removed himself from the murder investigation. N.T. 4/18/08 at 369, 371. He confirmed the case was reassigned to another prosecutor, who had no knowledge of Appellant's immunized grand jury testimony, in an effort to prevent any "taint" to the investigation from Appellant's immunized testimony. N.T. 4/18/08 at 370.
On cross-examination, Deputy DA Kelly admitted that unsuccessful efforts were made to find out what Appellant knew before he was called to testify before the grand jury. N.T. 4/18/08 at 376-77. He further admitted that, as of November 16, 2006, he believed Appellant was "most
Chester County Detective Lieutenant Joseph Brooks confirmed that, as of October 1, 2006, Appellant and Mr. Johnson were the two main suspects in the killing of Mr. Jennings. N.T. 4/18/08 at 428. Detective Brooks was never told Appellant had asserted his Fifth Amendment privilege before the grand jury or was compelled to appear and testify subject to an immunity order. N.T. 4/18/08 at 429-430. Detective Brooks admitted he knew something must have happened before the grand jury because, at some point, DA Carroll informed him that, although he was to continue the investigation, he was not to speak to certain other members of the task force regarding the investigation of Mr. Jennings' murder. N.T. 4/18/08 at 430. Detective Brooks denied knowing Appellant had been given immunity to testify, and in fact, he first learned about Appellant's immunized grand jury testimony when he read a newspaper article, which was written about Appellant's motion to dismiss. N.T. 4/18/08 at 430-429, 437.
On cross-examination, Detective Brooks testified he was unable to access any of Appellant's grand jury testimony or, in fact, discover whether he presented any testimony. N.T. 4/18/08 at 440. Further, he followed DA Carroll's directive not to speak with certain individuals, even though he was never given a reason for the directive. N.T. 4/18/08 at 441. Additionally, he confirmed the task force did not discuss Mr. Jennings' murder in front of certain people who were prohibited from the investigation. N.T. 4/18/08 at 442.
On redirect examination, Detective Brooks testified he was not sure why he could not speak to certain people and he assumed it had to do with the "nuances of a grand jury." N.T. 4/18/08 at 443. He did not suspect it had to do with Appellant offering immunized testimony. N.T. 4/18/08 at 443.
Detective Kevin Campbell testified he was involved in the thirteenth investigating grand jury and, as of November 16, 2006, he was aware of the contents of Appellant's immunized testimony. N.T. 4/25/08 at 477. Approximately one hour after Appellant testified, DA Carroll ordered Detective Campbell not to discuss the testimony with anyone, and Detective Campbell abided by the instructions. N.T. 4/25/08 at 477. He never revealed the contents of Appellant's testimony to anyone and remained silent as to his knowledge that Appellant had given immunized testimony. N.T. 4/25/08 at 477-79.
On cross-examination, Detective Campbell acknowledged that, prior to November 16, 2006, he participated in task force discussions regarding the murder of Mr. Jennings; however, after that date, he did not. N.T. 4/25/08 at 481, 494. Prior to November 16, 2006, Mr. Johnson was the principal suspect in the shooting and the police viewed Appellant as a witness. N.T. 4/25/08 at 481. After Appellant's first grand jury appearance, in October of 2006, Detective Campbell informed the task force Appellant had invoked his Fifth Amendment privilege. N.T. 4/25/08 at 485. The task force did not discuss whether the district attorney's office should seek immunity for Appellant since that is a question for the lawyers and "[i]t's not something that detectives favor." N.T. 4/25/08 at 486. However, there was discussion about the fact that Appellant should be served with
After Appellant's grand jury appearance on November 16, 2006, whenever the task force began discussing Mr. Jennings' murder, Detective Campbell left the room, as did a few of the attorneys. N.T. 4/25/08 at 492. The other task force members were told DA Carroll had given an order that they were to leave the room because they could no longer be involved in the meetings regarding Mr. Jennings' homicide. N.T. 4/25/08 at 492, 494.
Chester County Chief of Detectives Albert L. DiGiacamo confirmed Mr. Jennings' murder was a subject of the task force. N.T. 4/18/08 at 444-46. The relevant exchange occurred on direct examination by Appellant's counsel:
N.T. 4/18/08 at 455, 458, 461-62.
On cross-examination, Chief DiGiacamo testified that he has never read any of the grand jury testimony concerning Mr. Jennings' homicide, he has never learned the substance of any grand jury testimony, and he abided by the instructions not to speak to certain people after Appellant appeared before the grand jury. N.T. 4/18/08 at 463-64. He further testified that he was not certain Appellant had been granted immunity until after the court's hearing in March of 2008. N.T. 4/18/08 at 465-66.
Peter Kratsa, Esquire, testified Mr. Fields retained him on December 13, 2007, to represent his interests because he had been subpoenaed to appear before the grand jury on December 14, 2007. N.T. 4/25/08 at 505. On December 14, 2007, Attorney Kratsa engaged in a discussion with ADA Ost-Prisco seeking a compromise so that Mr. Fields would not have to appear before the grand jury. N.T. 4/25/08 at 507. On January 24, 2007, an impromptu meeting occurred in a common area of the courthouse where ADA Ost-Prisco informed Attorney Kratsa his suggested compromise "was not going to work." N.T. 4/25/08 at 508. During the impromptu meeting, Deputy ADA Kelly, who appeared to be in the area by happenstance, joined the meeting and disputed with Attorney Kratsa the validity of his reasons for seeking to quash the subpoena against Mr. Fields. N.T. 4/25/08 at 509. Ultimately, Mr. Fields' motion to quash was denied and he was held in contempt of the grand jury. N.T. 4/25/08 at 512. ADA Ost-Prisco handled the contempt proceedings; Deputy ADA Kelly was not present. N.T. 4/25/08 at 513.
On cross-examination, Attorney Kratsa did not recall Deputy ADA Kelly discussing at the impromptu meeting what Mr. Fields' grand jury testimony was likely to be, and he admitted the brief meeting concerned the validity of the motion to quash Mr. Fields' grand jury subpoena. N.T. 4/25/08 at 514-15. He agreed that it was "fair to say" Deputy ADA Kelly's conversation at the impromptu meeting concerned only the procedural aspects of the motion to quash. N.T. 4/25/08 at 515.
Detective Sergeant James C. Vito testified he took notes during the task force meetings, and he offered testimony regarding his notes. Specifically, his notes revealed the task force first discussed Mr. Jennings' homicide on May 22, 2006, at which time Germaine Myers was a suspect. N.T. 4/25/08 at 517. On May 24, 2006, the task force received a tip that Mr. Johnson killed Mr. Jennings. N.T. 4/25/08 at 518. Thus, both Myers and Johnson were suspects. N.T. 4/25/08 at 518. On August 10, 2006, the task force was focusing on Mr. Johnson as a suspect; however, they concluded it was important to speak to Appellant. N.T. 4/25/08 at 521. Detective Vito made a note from the August 10, 2006 task force meeting suggesting "[Appellant] is supposed to have contracted Johnson to kill Jennings . . . Story is [Appellant] had a chain stolen from [the victim]. Johnson and [Appellant] confront [the victim]. [The victim beat [Appellant], and Johnson then shoots [the victim]." N.T. 4/25/08 at 548. Since Appellant would not speak to the police, the task force recommended the district attorney's office compel Appellant to appear before the grand jury to disclose what he knew about the shooting. N.T. 4/25/08 at 523.
In late 2006, ADA Carroll dismissed Detective Campbell from the investigation, and he told the task force that something had happened between Appellant and the grand jury, thus requiring the erection of a "Chinese Wall." N.T. 4/25/08 at 531. Thereafter, certain people were no longer permitted to participate in the investigation of Mr. Jennings' murder and they were required to leave the task force meetings while the investigation was being discussed. N.T. 4/25/08 at 531. Detective Vito speculated as to the reasons for the instruction; however, he did not believe the problem was that Appellant had offered immunized testimony implicating himself. N.T. 4/25/08 at 539-40. The following relevant exchange occurred:
N.T. 4/25/08 at 541.
As of January 9, 2007, the task force knew Mr. Johnson had been charged in an unrelated case and, in his notes from the January 9, 2007 task force meeting, Detective Vito indicated "[Appellant] is a witness or co-conspirator." N.T. 4/24/08 at 545. His notes further revealed that, on February 8, 2007, ADA Ost-Prisco indicated at the task force meeting that, a few days prior, Ms. Shabazz informed him Mr. Johnson wanted to "talk about something we would be interested in." N.T. 4/24/08 at 554. Thereafter, Mr. Johnson informed the police Appellant had committed the murder.
On cross-examination, Detective Vito confirmed his notes from the August 10, 2006 task force meeting revealed Appellant was a potential suspect in the shooting and the investigation into the shooting was ongoing. N.T. 4/24/08 at 563. He also confirmed he read no transcripts from the thirteen investigating grand jury and he never violated DA Carroll's instruction not to speak to certain people about the investigation. N.T. 4/24/08 at 566-67.
The following relevant exchange occurred on redirect examination:
N.T. 4/24/08 at 572-73.
First Assistant District Attorney Patrick Carmody confirmed that, in early 2007, he began supervising ADA Ost-Prisco with regard to Mr. Jennings' murder, he was aware there were certain people with whom he was not permitted to speak about the case, and he abided by the restriction. N.T. 4/28/08 at 593-96. First ADA Carmody did not know Appellant had been called to testify before the grand jury. N.T. 4/28/08 at 595. In February of 2007, ADA Ost-Prisco approached First ADA Carmody regarding a plea bargain for Mr. Johnson in unrelated cases, and First ADA Carmody told him not to offer a plea bargain until they determined Mr. Johnson's role, or what information he might have, in connection with Mr. Jennings' murder. N.T. 4/28/08 at 598-600.
ADA Ost-Prisco was recalled to the stand and he admitted he eventually came to the conclusion that he had been reassigned the case "because someone ha[d] given immunized derivative use protected testimony[.]" N.T. 4/28/08 at 608. When he was assigned to the case, there was question among the law enforcement community as to whether Appellant was a suspect or witness in Mr. Jennings' homicide. N.T. 4/28/08 at 613-14.
At the conclusion of all testimony, by Opinion and Order filed on December 5, 2008, the trial court denied Appellant's motion to dismiss.
On May 19, 2009, the Commonwealth filed a motion in limine seeking to prohibit Appellant from questioning Mr. Johnson at trial regarding the specific facts underlying two cases in which Mr. Johnson had entered guilty pleas, as well as a forgery case which was then pending against him. Appellant filed a motion and supplemental motion in opposition, and by order filed on June 5, 2009, the trial court granted the Commonwealth's motion in limine.
Appellant proceeded to a jury trial, at the conclusion of which the jury convicted him of the offenses indicated supra in connection with the homicide of Mr. Jennings, and on June 16, 2009, Appellant was sentenced to life in prison. This timely appeal followed. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the trial court filed a responsive Pa.R.A.P. 1925(a) opinion on September 2, 2009.
Appellant's first contention is that, pursuant to Kastigar, the trial court erred in denying his pre-trial motion to dismiss the prosecution on the basis the Commonwealth did not "use or derivatively use" Appellant's immunized grand jury testimony. Appellant asserts the Commonwealth did not prove its prosecution of Appellant was based on a legitimate source wholly independent of Appellant giving compelled, immunized grand jury testimony. That is, Appellant argues the police impermissibly used his immunized testimony as an investigatory
Initially, we note that the decision to grant or deny a motion to dismiss criminal charges is vested in the sound discretion of the trial court and may be overturned only upon a showing of abuse of discretion or error of law. Commonwealth v. Doolin, 24 A.3d 998 (Pa.Super.2011).
In Kastigar, the U.S. Supreme Court granted certiorari to resolve the important question of whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom ("use and derivative use" immunity), or whether it is constitutionally necessary to grant immunity from prosecution for offenses to which compelled testimony relates ("transactional" immunity). In resolving the issue, the U.S. Supreme Court stated, in relevant part, the following:
Kastigar, 406 U.S. at 443-459, 92 S.Ct. 1653 (footnotes omitted).
Additionally, in explaining the nature of immunity from "use and derivative use" the U.S. Supreme Court addressed the following concerns:
Kastigar, 406 U.S. at 459-461, 92 S.Ct. 1653 (footnotes and citation omitted).
Subsequent to Kastigar, the Pennsylvania Supreme Court, in Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957 (1995), considered whether Pennsylvania's "use and derivative use" immunity statute, as codified at 42 Pa.C.S.A. § 5947,
Swinehart, 541 Pa. at 523-26, 664 A.2d at 968-69 (emphasis in original) (footnote added).
In the case sub judice, we agree with the trial court that the Commonwealth proved, by clear and convincing evidence, the prosecution of Appellant arose wholly from independent sources. That is, the Commonwealth proved during the hearing on Appellant's motion to dismiss that the evidence it proposed to use was derived from a legitimate source wholly independent of Appellant's compelled, immunized grand jury testimony. For instance, the record reveals that, prior to Appellant offering his immunized grand jury testimony on November 16, 2006, the investigating task force had information Appellant was criminally involved in the homicide. Specifically, Detective Quinn testified that, in August of 2006, a witness told the police Appellant had Mr. Jennings' killed, and Detective Vito made a notation from the task force meeting acknowledging Appellant may have contracted Mr. Johnson to kill Mr. Jennings in retaliation for the theft of a gold chain. On September 15, 2006, Ms. Beckett told the police
Subsequent to Appellant appearing before the grand jury, in what the police characterized as an ongoing murder investigation, on approximately February 8, 2007, Ms. Shabazz telephoned the police indicating Mr. Johnson wanted to provide them with information. Therefore, in February of 2007, Detective Dykes met with Mr. Johnson, who indicated he would not make a full statement without consulting with his attorney; however, he stated the death of Mr. Jennings was "all over a stupid chain." N.T. 3/12/08 at 156. Detective Dykes met with Mr. Johnson later that month, and Mr. Johnson, for the first time, provided a full, detailed account of what transpired on the night Mr. Jennings was murdered. Specifically, he recounted that Appellant shot Mr. Jennings, who attempted to flee. Mr. Johnson told the police he was coming forward because, while he was in prison on unrelated charges, a corrections officer told him that he was being blamed for the shooting.
Mr. Johnson's detailed February, 2007 statement led to Ms. Shabazz wearing a body wire, and in February and March of 2007, the police recorded conversations she had with Ms. Beckett. In April of 2007, the police confronted Ms. Beckett with statements she had made to Ms. Shabazz, and Ms. Beckett then made a full statement indicating that, a few hours after the murder, Appellant told her he "did what [he] had to do," N.T. 3/12/08 at 167, and she recounted how she and Appellant drove to Maryland, which ultimately led to Appellant dumping items in a plastic bag into a dumpster behind a strip mall.
On April 7, 2007, Detective Dykes watched a video of Mr. Jennings' funeral and he observed as Mr. Peoples placed Appellant's gold chain in the coffin. Mr. Jennings' coffin was exhumed so that the gold chain could be removed.
In October of 2007, Mr. Allen told the detective that, while he was in prison, Mr. Fields told him Appellant shot Mr. Jennings and he was attempting to place the blame on Mr. Johnson. Following Mr. Allen making his statement, Mr. Buchanan told the police that, after the homicide, Mr. Fields told him Appellant had killed Mr. Jennings. Thus, based on this investigation, the police concluded Appellant, and not Mr. Johnson, was the person who had shot Mr. Jennings, and therefore, the police charged Appellant with the murder in November of 2007.
Based on the aforementioned, we conclude the trial court did not err in finding the Commonwealth met its burden of proving, by clear and convincing evidence, that the evidence upon which Appellant's subsequent prosecution was brought arose wholly from legitimate, independent sources. See Kastigar, supra; Swinehart, supra.
We note Appellant suggests that, once he offered immunized grand jury testimony, he could not later be prosecuted for Mr. Jennings' murder because prosecutors and officers knew, or assumed, he had implicated himself under the grant of immunity.
In any event, to the extent Appellant correctly argues prosecutors and officers logically assumed Appellant had made inculpatory statements to the grand jury under the grant of immunity, this does not lead to the conclusion that the Commonwealth improperly used Appellant's compelled testimony as an "investigatory lead" or used any evidence obtained by focusing the investigation on Appellant as a result of his compelled disclosures. See Kastigar, supra. It is not conclusive that prosecutors and law enforcement officers assumed, or even knew, Appellant had offered inculpatory immunized grand jury testimony. The issue is what they did with their knowledge or assumptions, i.e., did they violate Kastigar's prohibition from "using the compelled testimony in any respect." Id. at 459, 92 S.Ct. 1653. Appellant's suggestion that, once he offered immunized grand jury testimony he could not later be prosecuted for the crime because prosecutors and officers assumed he had implicated himself under the grant of immunity is tantamount to an argument for transactional immunity, which the United States and Pennsylvania Supreme Court have already rejected.
Simply put, as indicated supra, the Commonwealth proved the prosecutors and law enforcement officers did not use Appellant's immunized grand jury testimony as an investigatory lead or focus the investigation on him as a result of his compelled disclosures. An examination of the investigation as it developed reveals
Appellant's next contention is that, during his jury trial, the trial court erred in permitting defense witness Ms. Shabazz to testify as to Commonwealth witness Ms. Beckett's prior consistent statements in violation of Pennsylvania Rule of Evidence 613(c). Specifically, Appellant challenges the following portions of Ms. Shabazz's cross-examination and re-cross examination by ADA Ost-Prisco, to which Appellant properly objected during trial:
N.T. 6/12/09 at 730-31, 741-42.
Appellant contends the trial court erred in permitting Ms. Shabazz's testimony since (1) although Ms. Beckett testified at Appellant's trial, she did not testify as to the prior consistent statements on direct examination, resulting in her being "unavailable for cross-examination," (2) Ms. Beckett's statements could not be admitted through Ms. Shabazz since Ms. Beckett, the declarant, was not offered for cross-examination on the particular statements, and (3) the Commonwealth failed to establish when Ms. Beckett made her prior consistent statements to Ms. Shabazz.
Our standard of review for considering whether a ruling on the admissibility of evidence was proper is well settled:
Commonwealth v. Cain, ___ Pa.Super ___, 29 A.3d 3, 6 (2011) (quotation omitted).
Pa.R.E. 613 provides, in relevant part, the following:
Pa.R.E. 613(c) (bold in original).
Commonwealth v. Baumhammers, 599 Pa. 1, 51, 960 A.2d 59, 89-90 (2008).
"A prior consistent statement is admissible only if it is made before the declarant has a motive to fabricate." Commonwealth v. Smith, 17 A.3d 873, 891 (Pa.2011) (citations omitted).
Commonwealth v. Montalvo, 604 Pa. 386, 407, 986 A.2d 84, 96 (2009).
With regard to Appellant's contention Ms. Beckett was unavailable for cross-examination since she did not testify about her prior consistent statements on direct examination, and the Commonwealth improperly introduced her statements through Ms. Shabazz, the trial court stated, in relevant part, the following in its Pa.R.A.P. 1925(a) Opinion:
Trial Court Opinion filed 9/2/09 at 9-21 (emphasis in original). We find no abuse of discretion in this regard. See Cain, supra.
With regard to Appellant's contention the Commonwealth failed to establish when Ms. Beckett made her prior consistent statements to Ms. Shabazz, we disagree.
As indicated supra, a prior consistent statement is admissible only if it is made before the declarant has a motive to fabricate. Smith, supra. Here, the record reveals Ms. Beckett made her statements to Ms. Shabaza; shortly after Mr. Jennings' murder, between October 20, 2005, and December 28, 2005. For instance, on direct examination of Ms. Beckett, the following transpired:
N.T. 6/10/09 at 565.
Based on Ms. Beckett's testimony that she discussed Appellant's statements regarding the murder between October 20, 2005, and December 28, 2005, which was at a time before Ms. Beckett had a motive to fabricate, we conclude the Commonwealth established the timing of Ms. Beckett's prior consistent statements to Ms. Shabazz. See Montalvo, supra. Thus, we conclude the trial court did not err in permitting evidence of Ms. Beckett's prior consistent statements pursuant to Pa.R.E. 613(c).
Appellant's final contention is that, during his jury trial, the trial court violated his constitutional rights in limiting Appellant's cross-examination of Mr. Johnson. Specifically, he alleges the trial court impermissibly limited his cross-examination of Mr. Johnson regarding (1) the specific facts underlying Mr. Johnson's unrelated, pending forgery case since such showed his propensity to lie, and (2) the fact Mr. Johnson received the benefit of a plea agreement in an unrelated case, despite the fact he failed to pass a polygraph examination with regard to the instant case.
Commonwealth v. Davis, 17 A.3d 390, 395 (Pa.Super.2011) (quotation and quotation marks omitted).
Commonwealth v. Paddy, 15 A.3d 431, 447-48 (Pa.2011) (emphasis in original).
Commonwealth v. Bozyk, 987 A.2d 753, 756-57 (Pa.Super.2009) (quotation, quotation marks, and citation omitted) (emphasis in original).
In the case sub judice, Mr. Johnson testified on direct examination about his prior criminal history and unrelated pending charges, including the forgery case. N.T. 6/9/09 at 328-334. Specifically, with regard to Mr. Johnson's then pending forgery charges, the relevant exchange occurred on direct examination:
N.T. 6/9/09 at 334.
On cross-examination, the trial court permitted Appellant to question Mr. Johnson regarding his pending forgery charge. See N.T. 6/9/09 at 374-375. The relevant exchange occurred with regard thereto:
N.T. 6/9/09 at 374-75.
At this point, Appellant's counsel requested a sidebar, at which counsel stated the following:
N.T. 6/9/09 at 375-376.
Indicating that Appellant's counsel was improperly "getting into specific facts about the [forgery] case," the trial court denied the request to cross-examine Appellant regarding the statement he had given to the police in the pending forgery
As indicated supra, Appellant also claims the trial court improperly limited the cross-examination of Mr. Johnson concerning the fact he reaped the benefit of a plea bargain in an unrelated case, even though he did not meet all of the required conditions, i.e., he failed a polygraph examination with regard to Mr. Jennings' murder.
In Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640 (2008), the post-conviction petitioner alleged his trial counsel was ineffective in failing to cross-examine his accomplice as to whether he failed a polygraph examination. In finding trial counsel was not ineffective, the Pennsylvania Supreme Court held:
Sattazahn, 597 Pa. at 687, 952 A.2d at 663.
Under Sattazahn, we conclude the trial court did not err in limiting Appellant's cross-examination of Mr. Johnson to preclude the results of his polygraph examination. See also Commonwealth v. Hetzel, 822 A.2d 747 (Pa.Super.2003) (holding trial court did not err in precluding cross-examination of commonwealth witness regarding the results of her polygraph examination since "any reference to a [polygraph test] which raises an inference concerning the guilt or innocence of a defendant is inadmissible." (quotation, quotation marks, emphasis omitted)).
For all of the foregoing reasons, we affirm.
Affirmed.
42 Pa.C.S.A. § 5947(a), (c), and (d) (bold in original).