Slip Opinion
Pa. Super. Ct.Oct 8, 2021Background
- On May 10, 2016, surveillance video showed a gold car (distinct sunroof, damage) arrive at 30th & Oxford in N. Philadelphia; a man in a gray hoodie and tan/khaki pants alighted from the car minutes before the victim was shot ~20 times and killed.
- Neighborhood witnesses reported seeing a man in a gray hoodie running from the scene and the gold car leaving; within minutes, Timothy Budd told neighbor John Linder that “Quanny” (Daquan Powers) in a gray hoodie and dark blue jeans shot the victim.
- Appellant’s girlfriend (driver of the gold car) was later stopped; police searched the car and found an unused 9mm round and a letter addressed to “Quanny.” Cell‑phone location data placed Powers in the area at the time and showing he left shortly after.
- Tiffanie McCall testified Powers boasted he killed the victim; Amin Budd and others gave statements identifying the shooter; Timothy Budd died before trial but had made an out‑of‑court identification statement to Linder.
- Powers filed pretrial motions to exclude Timothy Budd’s out‑of‑court identification (arguing hearsay/excited utterance); the trial court admitted the statement as a present‑sense impression (and later denied Powers’ pro se motion asserting excited‑utterance exclusion).
- A jury convicted Powers of first‑degree murder and related firearms offenses; court imposed mandatory life without parole plus consecutive firearm sentences. Powers appealed, raising (1) denial of Motion in Limine excluding Budd’s statement, (2) sufficiency of evidence (pants color/identification), (3) weight of the evidence, and (4) discretionary sentencing challenge. The Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Powers) | Held |
|---|---|---|---|
| 1. Admissibility of Timothy Budd’s out‑of‑court identification | Statement admissible (trial court found present‑sense impression); probative for ID | Statement hearsay; should be excluded as excited utterance/hearsay | Waived/inadequately developed as to excited‑utterance claim; trial court admitted as present‑sense impression and issue not preserved for review |
| 2. Sufficiency of evidence to support first‑degree murder conviction | Identification, cell‑phone data, car search results, admissions by McCall, and other evidence suffice | Insufficient: video shows Powers in tan/khaki pants but witness described shooter in blue jeans; alternative perpetrator (Jones) implicated | Rejected—argument attacks witness credibility/weight, not sufficiency; no relief |
| 3. Weight of the evidence | Credibility/weight are for jury; inconsistencies do not shock conscience | Verdict against weight: clothing discrepancy, McCall’s statement pointing to Jones, no forensic linkage | Denied—trial court did not abuse discretion; evidence not so tenuous as to shock the conscience |
| 4. Discretionary aspects of sentencing | Sentence lawful and mandatory; Commonwealth objects to procedural defects | Sentence excessive, harsh, unfair despite being legal | Waived for failure to include Pa.R.A.P. 2119(f); appeal precluded on discretionary sentencing merits |
Key Cases Cited
- Commonwealth v. Martz, 232 A.3d 801 (Pa. Super. 2020) (appellate briefing requirements and issue development)
- Commonwealth v. Hardy, 918 A.2d 766 (Pa. Super. 2007) (briefing defects and waiver)
- Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009) (court will not develop appellant’s argument)
- In re C.R., 113 A.3d 328 (Pa. Super. 2015) (failure to develop argument waives issue)
- Commonwealth v. Small, 741 A.2d 666 (Pa. 1999) (distinguishing sufficiency from weight challenges)
- Commonwealth v. Talbert, 129 A.3d 536 (Pa. Super. 2015) (standard of appellate review for weight claims)
- Commonwealth v. Hopkins, 747 A.2d 910 (Pa. Super. 2000) (credibility and contradictions are for the finder of fact)
- Commonwealth v. Thompson, 106 A.3d 742 (Pa. Super. 2014) (true weight claims concede sufficiency)
- Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) (trial court’s discretion in weight determinations)
- Commonwealth v. Morales, 91 A.3d 80 (Pa. 2014) (reversal for weight only for palpable abuse of discretion)
- Commonwealth v. Hunter, 768 A.2d 1136 (Pa. Super. 2001) (elements of appellate review for discretionary sentencing)
- Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006) (procedural requisites before appellate review of discretionary sentencing)
- Commonwealth v. Sanchez, 848 A.2d 977 (Pa. Super. 2004) (omission of Pa.R.A.P. 2119(f) waives sentencing claim)
- Commonwealth v. Kiesel, 854 A.2d 530 (Pa. Super. 2004) (court precluded from reviewing sentencing merits when Rule 2119(f) omitted)