midpage
Slip Opinion
Pa. Super. Ct.
Oct 8, 2021
Read the full case

Background

  • 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)
Read the full case

Case Details

Case Name: Com. v. Powers, D.
Court Name: Superior Court of Pennsylvania
Date Published: Oct 8, 2021
Citation: 1999 EDA 2020
Docket Number: 1999 EDA 2020
Court Abbreviation: Pa. Super. Ct.
Log In