Michael Coard, Attorney.
Photo by Chris Sembrot
MICHAEL COARD, ESQUIRE ATTORNEY FOR DEFENDANT
IDENTIFICATION NO. 47344
ONE LIBERTY PLACE
1650 MARKET STREET, SUITE 3652PHILADELPHIA, PA 19103
215/552-8714
COMMONWEALTH OF PENNSYLVANIA : DELAWARE COUNTY
: COURT OF COMMON PLEAS
V.
: CRIMINAL DIVISION
TIANA DRUMMOND-PHIRI : NO. CP-23-CR-0003267-2009
POST-SENTENCE MOTION
Tiana Drummond-Phiri (hereinafter referred to as “the defendant”), by her trial counsel
MICHAEL COARD, ESQUIRE, timely files this post-sentence motion pursuant to Pa.R.Crim.Pro. 720(A)(1), (B)(1)(a)(ii) and (iv) and 606(A)(6) for the purpose of seeking a judgment of acquittal because the evidence was insufficient as a matter of law or (in the alternative) a new trial because the verdict was against the weight of the evidence and also because the interests of justice require a new trial.
In support of this post-sentence motion, the defendant avers as follows:
On January 22, 2010, Common Pleas Court Judge Charles Keeler found the defendant guilty of Conspiracy (18 Pa.C.S.A. 903(a)(1), M2) to commit Simple Assault (18 Pa.C.S.A. 2701(a)) and sentenced her to one year probation and court costs in connection with a March 16, 2009 approximately 4:00 p.m. school-related melee in which no one alleged that she hit anyone or that she even attempted to hit anyone. Moreover, not even one of the admitted participants in the aforesaid melee was charged.
At the outset, the defendant seeks a judgment of acquittal because the evidence of an alleged conspiracy was insufficient as a matter of law. Not only is the Commonwealth required to prove its case beyond a reasonable doubt, it is also required to prove “each and every element of each and every crime charged” beyond a reasonable doubt. And it clearly failed to do so.
For example, Conspiracy requires sufficient evidence of “intent,” an “agreement,” and an “overt act.”
But there was no beyond a reasonable doubt evidence against the defendant: not one single Commonwealth witness presented any sufficient evidence whatsoever as to any specific “intent” on the part of the defendant to plan or otherwise participate in any particular crime. In fact, one of those Commonwealth witnesses- namely complainant Steven Farley himself- admitted during his trial testimony that it was he who, in school prior to the melee at a train station parking lot, yelled “Shut the fuck up” directly in the defendant’s face, that she said “nothing” in response, and that she did not even look at him in a school hallway. Such silence and passivity certainly cut against any evidence of criminal intent. Furthermore, it was the complainant himself who admitted during his trial testimony that he had taken off his shirt- despite the temperature being a cold approximately 40 degrees in the station’s parking lot- before the melee. Such clothing-removal conduct by him was obviously and logically in preparation for a fight. Moreover, unlike the defendant who used that train station daily to get to and from school, the complainant had no law-abiding reason for being there, especially on that particular date and at that particular time.
In addition, not one single Commonwealth witness presented any sufficient evidence whatsoever as to any “agreement” on the part of the defendant in regard to being involved in any crime. No one could testify as to what she said, if anything at all, to any particular person about any particular criminal activity at all. It’s as simple as that.
As well, not one single Commonwealth witness presented any sufficient evidence whatsoever as to any “overt act” by the defendant. In fact, everyone agrees that she threw no punches and that she was approximately 40-50 yards away from the actual melee.
It is interesting to note that despite the Commonwealth having thoroughly investigated the March 16, 2009 incident prior to the June 2, 2009 preliminary hearing, it did not add the conspiracy charge until that preliminary hearing date. Such an amendment tends to show that charge as a “panicky catch-all eleventh hour afterthought” to “creatively cut-and-paste” a case that was shaky at best.
Not only do the facts support a verdict of not guilty, but so does the law. Although there was insufficient proof that the defendant actually accompanied any alleged assaulter, including the “unknown black male” (who supposedly punched the complainant), to the scene, even if she had accompanied that person to the scene of the subsequent crime, that is not proof of guilt beyond a reasonable doubt. See, e.g., Commonwealth v. Mills, 478 A.2d 30 (Pa. Super., 1984). Also, although there was insufficient proof of the defendant having actually been associated with any alleged assaulter, even if she had been associated with that person, that is not proof of guilt beyond a reasonable doubt. See, e.g., Commonwealth v. Kennedy, 453 A.2d 927 (Pa., 1982). Similarly, although there was insufficient proof of the defendant having actually known in advance about the melee, even if she had known, that is not proof beyond a reasonable doubt. See, e.g., Commonwealth v. Mercado, 617 A.2d 342 (Pa. Super., 1992). Likewise, although there was insufficient proof that the defendant was present at the precise location of the melee (because evidence indicated that she was approximately 40-50 yards away), even if she had been immediately and directly present, that is not proof of guilt beyond a reasonable doubt. See, e.g., Commonwealth v. Swerdlow, 636 A.2d 1173 (Pa. Super., 1994). Along the same lines, the fact that apparently two or more persons were involved in the melee does not of itself constitute a conspiracy. See, e.g., Commonwealth v. Derr, 462 A.2d 208 (Pa., 1983). Nothing more than suspicion and possibility were presented as purported evidence regarding an alleged conspiracy. And, most assuredly, suspicion and possibly are insufficient evidence. See, e.g., Commonwealth v. Frey, 399 A.2d. 742 (Pa. Super., 1979).
Apart from seeking a motion for judgment of acquittal, the defendant in the alternative seeks a new trial because the verdict was against the weight of the evidence and also because the interests of justice require a new trial.
It was against the weight of the evidence in that, inter alia, the trial judge failed to give due weight to the defendant’s unimpeachable, unarguable, and absolutely pristine reputation for being law-abiding, honest, and/or non-violent. Commonwealth v. Neely, 539 A.2d 1317 (Pa. Super., 1988) and its progeny hold that good reputation evidence “in and of itself” may raise a reasonable doubt as to guilt. Along with her great reputation, the defedant is also an honor student who has received letters of recommendation for college from the likes of the Honorable Timothy R. Rice, United States Magistrate Judge, who in an October 1, 2008 letter described her as a “mature young woman with discipline and personal integrity” who would be a “positive presence on any college campus.” The verdict was also against the weight of the evidence in that, inter alia, a number of Commonwealth witnesses presented inconsistent and contradictory testimony. One example- among numerous examples from several Commonwealth witnesses- is the fact that although the complainant alleged that he had heard nothing about a fight that was to take place later in the day, everyone else in the school had heard something about it. Such testimony should have warranted a “falsus in uno, falsus in omnibus” consideration.
The defendant further seeks a new trial because the interests of justice require such. From the very beginning, this case is replete with allegations of racism, racial bias, and/or racial unfairness. These allegations are based on the fact that while white students were involved in the melee, not one of them was charged- not even the white complainant who admitted that he threw punches. However, the defendant- a black honors student with no criminal record and who threw no punches- was charged and convicted. The racial implications have become such a major component of this case that the NAACP and the media as well as others (including apparently the Pennsylvania Human Relations Commission) have begun investigations. To the extent that race played a part in the arrest, the charging, and the conviction of a black person, played a part in the failure to arrest, charge, or convict a white person, and/or played a part in granting immunity to a white Commonwealth witness but not to a black defense witness, the defendant’s Fifth (i.e., due process), Sixth (impartial fact-finder), and Fourteenth (i.e., due process and equal protection) Amendment rights were violated.
And to the extent that the defendant received any sentence whatsoever for what was at worst a De Minimis infraction (18 Pa.C.S.A. 312) that was committed by others, such a sentence- for an honor student whose plans for law school have been dashed by this conviction- violates her right against cruel and unusual punishment as precluded by the Eighth Amendment.
In conclusion, and pursuant to Pa.R.Crim.Pro. 720(B)(1)(b), defendant (who now has new counsel replacing trial counsel) respectfully requests permission to file a supplemental post-sentence motion in a timely manner following her receipt of the trial transcript which has been ordered.
Respectfully submitted,
_________________________________ 2/1/10
MICHAEL COARD, ESQUIRE Date
VERIFICATION
I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities.
2/1/10 __________________
Date MICHAEL COARD, ESQUIRE
MICHAEL COARD, ESQUIRE ATTORNEY FOR DEFENDANT
IDENTIFICAITON NO. 47344
ONE LIBERTY PLACE
1650 MARKET STREET, SUITE 3652
PHILADELPHIA, PA 19103 215/552-8714
COMMONWEALTH OF PENNSYLVANIA : DELAWARE COUNTY
: COURT OF COMMON PLEAS
V.
: CRIMINAL DIVISION
TIANA DRUMMOND-PHIRI : NO. CP-23-CR-0003267-2009
NOTICE OF HEARING
AND NOW, this day of ____________________, 2010, upon consideration of the within Post-Sentence Motion, a rule is entered on the District Attorney of Delaware County to show cause why said motion should not be granted.
A hearing is scheduled for the ___________ day of _________________________,
2010 in courtroom __________ at the Delaware County Courthouse in Norristown, PA at
______ o'clock a.m.
BY THE COURT:
______________________________
J.
MICHAEL COARD, ESQUIRE ATTORNEY FOR DEFENDANT
IDENTIFICATION NO. 47344
ONE LIBERTY PLACE
1650 MARKET STREET, SUITE 3652
PHILADELPHIA, PA 19103
215/552-8714
COMMONWEALTH OF PENNSYLVANIA : DELAWARE COUNTY
: COURT OF COMMON PLEAS
V.
: CRIMINAL DIVISION
TIANA DRUMMOND-PHIRI : NO. CP-23-CR-0003267-2009
ORDER
AND NOW, this _____ day of ______________ , 2010 upon consideration of the
foregoing Post-Sentence Motion, it is hereby ORDERED that said motion is granted.
BY THE COURT:
.
J.
MICHAEL COARD, ESQUIRE ATTORNEY FOR DEFENDANT
IDENTIFICATION NO. 47344
ONE LIBERTY PLACE
1650 MARKET STREET, SUITE 3652
PHILADELPHIA, PA 19103
215/552-8714
COMMONWEALTH OF PENNSYLVANIA : DELAWARE COUNTY
: COURT OF COMMON PLEAS
V.
: CRIMINAL DIVISION
TIANA DRUMMOND-PHIRI : NO. CP-23-CR-0003267-2009
CERTIFICATE OF SERVICE
I hereby certify that on the 1st day of February, 2010, the foregoing Post-Sentence
Motion was served upon the following persons by messenger delivery:
The Honorable Charles Keeler
Delaware County Courthouse
Media, PA 19063
ADA Thomas Laurie Jr., Esquire
