Commonwealth v. Cash, O., Aplt.
137 A.3d 1262
| Pa. | 2016Background
- On April 21, 2008 Omar Sharif Cash walked into a Philadelphia carwash, approached Muliek Brown from behind and shot him in the back of the head; surveillance video and eyewitness identifications linked Cash to the shooting. Brown died from a single close-range gunshot to the head.
- Cash testified that he acted out of fear and passion because Brown and others had allegedly been pursuing and shooting at him earlier that day; he sought a voluntary manslaughter instruction.
- A jury convicted Cash of first-degree murder and possession of an instrument of crime; at penalty phase the jury found one aggravator (significant history of violent felonies) and some mitigating evidence, and returned a death sentence.
- Cash raised multiple claims on direct appeal challenging sufficiency and weight of the evidence, denial of a manslaughter instruction, prosecutorial misconduct, improper cross-examination and evidence presentation (including slow‑motion video), juror exposure to media, improper penalty-phase testimony, and shackling during the penalty hearing.
- The Pennsylvania Supreme Court reviewed each claim, found no reversible error, concluded the evidence supported first‑degree murder and the aggravator, and affirmed the judgment of sentence.
Issues
| Issue | Cash's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for first‑degree murder | Cash acted from fear/passion, so no malice; evidence insufficient | Surveillance video, three IDs, confession, and flight support malice and intent | Evidence sufficient; shooting vital part (back of head) supports malice and intent |
| Weight of the evidence | Jury should have credited Cash's testimony that he acted from fear/provocation | Jury reasonably discredited Cash; Commonwealth evidence overwhelming | Trial court did not abuse discretion; verdict not against weight of evidence |
| Refusal to charge voluntary manslaughter | Testimony of provocation justified manslaughter instruction | Video and timing show deliberation; adequate cooling time so manslaughter not supported | Denial proper — evidence did not show sudden intense passion at time of killing |
| Prosecutor's closing remarks (“execution”, “guerilla warfare”) and request for mistrial | Remarks were improper, prejudicial, require mistrial | Remarks were reasonable inferences/oratorical; curative instruction sufficed | No mistrial; court sustained objection to “execution” and jury presumed to follow curative instruction |
| Cross‑examination about uncalled witness (Bobby Harris) and hearsay/confrontation claims | Questions injected hearsay, violated confrontation, and prejudiced jury | Objections were on different grounds below; trial court sustained objection to hearsay question; any prejudice curable | Claims waived (different objection at trial); trial court did not abuse discretion in handling; no relief |
| Playing surveillance footage in slow motion | Slow motion distorts reality and is unduly prejudicial under Pa.R.E. 401/403 | Slow motion aided identification and showed two shots; full‑speed playback preceded slow motion; markings and instructions minimized prejudice | Admissible; trial court did not abuse discretion — probative value outweighed prejudice |
| Juror exposure to newspaper before penalty phase | Court should have individually colloquied jurors; group inquiry insufficient given article discussed criminal history | Multiple prior instructions to avoid media and group questioning were adequate | No abuse of discretion; group inquiry and repeated instructions sufficient |
| Improper penalty‑phase testimony (unproved robbery) | Testimony that Cash robbed a fellow inmate was prejudicial despite curative instruction | Trial court promptly instructed jury to disregard; overwhelming other violent‑felony evidence made any error harmless | Instruction cured prejudice; no new penalty hearing warranted |
| Shackling during penalty hearing | No adequate reason; no colloquy; visible shackling undermines fairness | Custody staff observed aggressive behavior; restraints were under clothing and counsel consented | Claim waived when counsel acquiesced; court acted within discretion; no relief |
Key Cases Cited
- Commonwealth v. Jordan, 65 A.3d 318 (Pa. 2013) (slow‑motion video admissibility: probative value vs. prejudice under Rule 403)
- Commonwealth v. Mikell, 729 A.2d 566 (Pa. 1999) (placing gun to back of head and firing evinces malice)
- Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011) (use of deadly weapon on vital part supports inference of intent to kill)
- Commonwealth v. Parrish, 77 A.3d 657 (Pa. 2013) (appellate sufficiency review standards in capital cases)
- Commonwealth v. Montalvo, 986 A.2d 84 (Pa. 2009) (voluntary manslaughter requires sudden and intense passion from serious provocation)
- Commonwealth v. Bruno, 352 A.2d 40 (Pa. 1976) (trial court must take appropriate protective action when prejudicial publicity exists)
- Commonwealth v. DeJesus, 880 A.2d 608 (Pa. 2005) (group questioning and prior instructions can suffice to guard against media prejudice)
- Commonwealth v. Eichinger, 108 A.3d 821 (Pa. 2014) (prosecutor has broad latitude in closing argument; comments based on evidence or reasonable inference are permissible)