Com. v. Verdier, N.
2910 EDA 2016
| Pa. Super. Ct. | Sep 11, 2017Background
- On December 19, 2012, a jury convicted Nutta Verdier of third‑degree murder, attempted murder, conspiracy, aggravated assault, and firearms offenses stemming from a shootout in Philadelphia that killed bystander Gary Autry.
- Co‑conspirator Jacque Warren testified for the Commonwealth; other participants included Eric Cooper and a third man nicknamed “GoGo.” Police recovered evidence showing at least 27 shots fired.
- Warren initially testified he did not see the others armed before the confrontation; after a weekend communication between the prosecutor and Warren’s counsel, Warren changed portions of his testimony on re‑direct.
- The trial court handled the post‑weekend issue by having the parties stipulate to the prosecutor’s dissatisfaction with Warren’s earlier testimony and read that stipulation to the jury; defense counsel were allowed to question Warren about how the conversation affected his testimony.
- Additional trial disputes included alleged discovery violations (late disclosure of fingerprint results) and challenges to witness credibility and the weight/sufficiency of the evidence; Verdier also raised sentencing arguments post‑appeal.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Verdier) | Held |
|---|---|---|---|
| Sufficiency of evidence for third‑degree murder | Evidence (including testimony about pursuit, exchange of gunfire, and many shots fired) supports finding of malice/recklessness | Insufficient proof Verdier acted with the requisite recklessness; transferred intent allegedly not established because other gun (GoGo’s .40) fired fatal shots | Affirmed: evidence sufficient for third‑degree murder based on recklessness and totality of circumstances |
| Mistrial for alleged sequestration violation (prosecutor communicated with witness’s counsel) | No mistrial necessary; court’s remedy (stipulation read to jury and allowance to cross‑examine Warren) cured prejudice | Prosecutor’s contact caused a sequestration violation and required mistrial or strike of witness testimony | Affirmed: trial court did not abuse discretion in denying mistrial and instead used stipulation/remedy; remedy not an abuse of discretion |
| Confrontation clause / right to call prosecutor/defense counsel as witnesses | Defense had opportunity to question Warren about effects of conversation; no denial of confrontation rights | Failure to permit calling DA or Warren’s counsel to testify denied right to confront and impeach | Affirmed: confrontation claim waived/insufficient; defense was permitted the relief sought (question Warren) and did not pursue further testimony |
| Weight of the evidence (credibility of Commonwealth witnesses) | Witness credibility was for jury; defense thoroughly attacked credibility | Verdict against weight because primary witnesses had felonies and credibility issues | Affirmed: trial court found verdict not shocking; appellate court declines to overturn weight determination |
| Discovery violations (late fingerprint/ballistics results) | Any violation was manageable; stipulations were read and defense used them in closing | Late disclosure of fingerprint and ballistics testing prejudiced defense and warranted sanctions or mistrial | Affirmed: ballistics claim waived for inadequate preservation; fingerprint issue addressed by stipulations and defense used it in argument; no prejudice shown |
| Incorporation of prior claim (undeveloped) | N/A | Seeks to reincorporate prior direct appeal issue | Waived: appellant failed to develop argument or cite authority |
| Sentencing—failure to consider age | N/A | Court failed to consider Verdier’s age when imposing sentence (discretionary aspects) | Waived for failure to comply with Pa.R.A.P. 2119(f); no jurisdiction to review |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Sixth Amendment confrontation clause principles)
- Commonwealth v. Champney, 832 A.2d 403 (Pa. 2003) (standard for weight‑of‑the‑evidence review)
- Commonwealth v. Santos, 876 A.2d 360 (Pa. 2005) (definition/analysis of malice for third‑degree murder)
- Commonwealth v. Gaynor, 648 A.2d 295 (Pa. 1994) (doctrine of transferred intent)
- Commonwealth v. Cottam, 616 A.2d 988 (Pa. Super. 1992) (malice defined; conscious disregard of risk)
- Commonwealth v. Thomas, 656 A.2d 514 (Pa. Super. 1995) (malice may be inferred from totality of circumstances)
- Commonwealth v. Bruce, 916 A.2d 657 (Pa. Super. 2007) (circumstantial evidence suffices for criminal convictions)
- Commonwealth v. Dale, 836 A.2d 150 (Pa. Super. 2003) (standard for sufficiency review)
- Commonwealth v. Robertson, 874 A.2d 1200 (Pa. Super. 2005) (trial court discretion in remedies for sequestration violations)