J. S20006/15 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. :

:

GARY SMITH, : No. 86 WDA 2014 

:

 Appellant :

Appeal from the Judgment of Sentence, October 17, 2013, 

in the Court of Common Pleas of Allegheny County 

Criminal Division at No. CP-02-CR-0013605-2011 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 21, 2015 

 Appellant appeals his conviction for second degree murder, robbery, 

and related crimes. Finding no error below, we affirm. 

 On October 14, 2011, appellant and a co-defendant killed a man at the 

victim’s home in Clairton during a drug deal turned robbery. Appellant was 

convicted by bench trial on July 17, 2013, and sentenced to an aggregate 

term of life imprisonment on October 17, 2013. 

 On appeal, appellant argues that the trial court erred in not permitting 

him to present expert testimony as to the limits on eyewitness identification 

and also erred in not finding that the conviction was against the weight of 

the evidence. 

 We find no error with the trial court’s holding. After a thorough review 

of the record, the briefs of the parties, the applicable law, and the 
J. S20006/15 

- 2 - 

well-reasoned opinion of the trial court, it is our determination that there is 

no merit to the questions raised on appeal. Judge Beth A. Lazzara’s 

comprehensive, 14-page opinion, filed on September 15, 2014, thoroughly 

discusses and properly disposes of the questions presented.1 We will adopt 

it as our own and affirm on that basis. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/21/2015 

 

1

 One of the limits on eyewitness testimony raised by appellant is the effect 

of the presence of a weapon and how a “weapons focus” impairs memory 

and identification. Significantly, we note, as does the Commonwealth, that 

the eyewitness had an opportunity to observe appellant before a weapon 

was produced. (See Commonwealth brief at 11.) This factor also presents 

a major distinction between the facts of this case and those of 

Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), relied upon by 

appellant. 
APPENDIX A 

denied on that same day. The Defendant's timely appeal followed. 

sentence motions were filed on October 23, 2013, argued on December 12, 2013 and 

and a concurrent period of five (5) to ten (1 O) years on the Robbery charge. Postl 

Endangering Another Person (18 Pa.C.S.A. §2705). The Defendant was sentenced on 

October 17, 2013 to a term of life imprisonment without parole on the Murder charge 

of Criminal Conspiracy (18 Pa.C.S.A. §903) and three (3) counts of Recklessly 

§3701 (a)(1) (i), Possession of Firearm Prohibited (18 Pa.C.S.A. §6105), two (2) counts 

July 16, 2013 and July 17, 2013. The Defendant was found guilty of Second Degree 

Murder (18 Pa.C.S.A. §2501 ), Robbery - Serrous Bodily Injury (18 Pa.C.S.A. 

This rs an appeal following a non-jury trial conducted before this court between 

OPINION 

Defendant. 

GARY SMITH, 

COMMONWEALTH OF PENNSYLVANIA, 

vs. CC No. i 3605-2011 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

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Co-Defendant Eugene McMiller and this Defendant, Gary Smith. were accused 

of killing Justin Charles during a robbery on October 14, 2011. On that day, Michael 

Elko and Charles Coddington were at Mr. Elka's home at 3103 Miles Street in Clairton. 

(T.R. 7/16/13, pp. 17, 21 ). Both Mr. Elko and Mr. Coddington were admitted heroin 

users. (T.R.7/16/13, pp. 16,18). A friend of the pair, Justin Charles, came to the home 

with two (2) African-American males, one of whom Mr. Elko later identified as the 

Defendant (T.R.7/16/13, pp 19, 21-22) Mr. Charles, also a heroin user, was trying to 

arrange a drug deal with the two (2) men. (T.R. 7/16/13, pp. 19-21, 22-24). Mr Charles 

asked to buy two (2) stamp bags of heroin from the men in order to sample what the 

men were selling and then offered that he would buy a bundle of stamp bags if he liked 

the first two (2). (T.R.7/16/13, pp 23-24). The men indicated that they did not have the 

drugs with them and would have to leave the house to go get the heroin. (T.R. 7/16/13, 

p 24) The men then left the house (T.R.7/16/13, p. 24). Mr. Charles asked Mr. Elko if 

he would get some heroin tor him in the meantime, and Mr. Elko left the house to do so. 

(T.R. 7/16/i 3, pp 24-25). 

FACTS: 

The Defendant, in his Statement of Matters Complained of on Appeal. asserts 

only two (2) errors during the handling of this case, namely that (1) the court erred in 

refusing to allow expert testimony regarding eyewitness identification and (2) the guilty 

verdicts were against the weight of the evidence. 

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3 

32. 35). Mr. Charles ran down the stairs, followed by the Defendant with the gun and 

When the three (3) men began walking upstairs, Mr. Elko called 911, and, during 

his report to the 911 operator, he heard shots coming tram upstairs. (T.R. 7/16/13, pp. 

stairs. (T R. 7 /16/13, pp. 31 -32). 

because Mr. Charles did not live in the home, and then the three (3) men walked up the 

upstairs. (T.R. 7/16/13, p. 31 ). Mr, Elko stated that there was no money upstairs 

; 

made. (T.R. 7/16/13, p. 31 ). In response, Mr. Charles indicated that the money was 

co-Defendant gave the gun to this Defendant, and another demand for money was 

would give the gun to the Defendant, who would use it. (T.R 7/16/13, pp. 29-30). The 

The co-Defendant threatened that, if Mr. Charles did not give him the money, he 

acknowledge the offer. (T.R. 7/16/13, pp. 26-27). 

had given him to buy two (2) stamp bags, but the co-Defendant did not even 

7/16/13, pp. 26-27, 29). Mr. Elko tried to give the co-Defendant the $20 that Mr. Charles 

Defendant then pulled out a gun and demanded money from Justin Charles. (T.R. 

were police in the area. (T.R. 7/16/13. pp. 25-26). According to Mr. Elko, the coDefendant, who was in the kitchen, tell someone to lock the front door because there 

Defendant. (T.R. 7/16/13, pp. 25-26} As he entered his home, Mr Elko heard the 

Mr. Elko immediately returned to his home, entering the house shortly after the cofront door of his home, and the Defendant entering the back door (T.R. 7/16/13, p. 25). 

As Mr. Elko was walking in front of his house, he saw the co-Defendant enter the 

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4 

Mr. Elko described one of the men who entered his home that day to the 911 

operator. He indicated that one of the men was a larger black man with a Muslim-style 

beard, meaning a beard that went from ear to ear, but with no mustache. (T.R. 7/16/13, 

p. 35). Mr. Elko met with a detective from the Allegheny County Police, Homicide Unit, 

later that day and was presented with photographs of individuals who could have been 

in his home that day. (T.R. 7/16/13, pp. 35-36). Mr. Elko identified the Defendant as 

one of the men who came into his house, and as the man who was originally in the 

kitchen, when shown a photo array by Detective Hitchings of the Allegheny County 

police. (T. R. 7/16/13, pp. 36, 38; Exhibit 4). Mr. Elko identified the Defendant in court as 

the man whose photo he selected in the photo array and as the man who was in his 

kitchen that day. (T. A. 7/16/13, pp. 38-39). 

then the co-Defendant. (TA. 7/16/13, pp. 32-33). As the three (3) ran toward the back 

door, there was another gunshot. (LR. 7/16/13, pp. 32-33). After the shooting, Mr 

Elko saw the two (2) African-American men jump over Mr. Charles and then run 

together behind some nearby buildings. (T.R. 7/i 6/13, pp. 32, 39). Mr Elko was in the 

back of the house with Mr. Charles when the paramedics arrived. (T. A. 7/16/13, pp. 34 

35). Unfortunately, Mr. Charles was already dead by the time that the paramedics 

reached him. (f.R. 7/16/13, p. 35). 

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1. Motion to Allow Expert Testimony regarding Eyewitness Identification 

Prior to the trial of this case. the defense filed a Motion to Allow Expert Testimony 

regarding Eyewitness Identification. Argument on the motion was scheduled for 

December 12, 2012. At that time, the Defendant's attorney asked to be permitted to 

brief the issue, a request to which the Commonwealth did not object. (T. R. 12/12/12. pp. 

2-3). Briefs were filed on behalf of both the defense and the Commonwealth, but the 

defense requested that a ruling not be made quickly so that the Pennsylvania Supreme 

Court would have time to rule on this precise Issue. The case of Com. v. Walker, 92 

s 

ARGUMENT: 

The cases of the co-Defendant, Eugene McMiller (2011-13606) and this 

Defendant, Gary Smith, were originally joined. Counsel for the co-Defendant filed a 

Motion for Severance pursuant to Rule of Criminal Procedure 583, stating that the coDefendant's version of events was so antagonistic to the Defendant Mr. Smith's defense 

that it would be impossible for a trier-of-fact to believe both. Specifically, the coDefendant acknowledged in his Motion being present at Mr. Elka's residence, with the 

Defendant, at the time of the shooting. (See Motion for Severance). The court granted 

the severance motion on February 16, 2012. While the cases were still joined, counsel 

for the Defendant filed a motion seeking to preclude the identification testimony of Mr. 

Charles Coddington, also an eyewitness to the events of October 14, 2011. This court 

granted rhe motion as to the Defendant on March 13, 2012. As such. the only person to 

present eyewitness testimony in this case was Mr. Elko. 

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Commonwealth on this issue that was in effect at the time of the Defendant's trial. ' 

following the trial and verdict in this case This court correctly applied the law of the 

Walker, supra, that case was not decided until May 28, 2014, some ten (1 O) months 

Supreme Court has now revised this long-standing bar on such expert testimony in 

barring expert testimony regarding eyewitness testimony. While it is true that the 

Super. 2003). This court had no authority to ignore the mandates of higher courts in 

testimony regarding eyewitness identification. Com. v. Bormack, 827 A.2d 503 (Pa. 

Additionally, the Superior Court had also ruled in the same way, barring expert witness 

Simmons, 662 A.2d 621 (Pa. 1995); Com. v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996). 

the presentation of such testimony. Com. v. Spence, 627 A.2d 1176 (Pa. 1993}; Com. v. 

was relying on Pennsylvania Supreme Court decisions which have unequivocally barred 

expert testimony on eyewitness identification at the time of this non-jury trial, this court 

While the defense asserts that this court erred in ·not permitting him to present 

juries of the vagaries of expert testimony. (T.R. 7/16/13, pp. 12-13). 

less pressing in this court's mind, given that judges are generally more aware than 

l 

Defendant had decided to proceed with a non-jury trial, making the issue of the expert 

case law at the time of trial. (T. R. 7 /16/13, pp. 12-13). It should also be noted that the 

Therefore, this court denied the Defendant's motion in accordance with the existing 

trial, no decision had yet been rendered by the Supreme Court in the Walker case. 

was pending before this court in this case. When the Defendant's case was ready for 

A.3d 766 (Pa. 2014), was being considered by the Supreme Court as the same issue 

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The standard of review regarding claims of insufficiency of the evidence is wellsettled In revrewmq the sufficiency of the evidence, the appellate court must determine 

whether the evidence admitted at trial, and all reasonable ,nterences drawn therefrom, 

viewed in the light most favorable to the Commonwealth as the verdict winner, rs 

7 

The Defendant's entire argument that the verdict was against the weight of the 

evidence is premised on the allegation that Mr. Elka's identification of the Defendant 

was suspect and in error. The Defendant argues that Mr. Elko had insufficient time to 

view the Defendant in order to properly identify him, and that Mr. Elko was focused on 

the gun during the time that he was in the presence of the perpetrators instead of 

focusing on the person or persons holding the gun. The Defendant further argues that 

Mr. Elko was a heroin user who .used that day, thereby affecting his ability to identify the 

perpetrators. He also asserts that Mr. Elko was unable to identify physical 

characteristics or articles of clothing of the perpetrators and that there was no physical 

evidence of the Defendant's presence at the scene. (See Statement of Matters 

Complained of on Appeal ,JS(b)). 

2. The Verdict was Against the Weight of the Evidence. 

This court did not commit error by applying existing law that barred the use of 

expert testimony with regards to eyewitness identification, and no new trial should be 

permitted on this basis. 

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Defendant attempts to argue that the direct evidence provided by Mr. Elko was weak or 

incredible, this court found the testimony of Mr. Michael Elko to be compelling. He was 

one of two (2) eyewitnesses to the events of October 14, 2011, and he was able to 

) 

describe what he saw, heard and experienced to the jury In great detail. (T.R. 7/16/13, 

namely, the testimony of an eyewitness to the robbery, Mr. Elko. Although the 

direct evidence of the Defendant's involvement in this armed robbery and murder, 

Here, this court found the Defendant guilty of all charges after hearing strong 

' 

A.2d 703 (Pa. Super. 2007). 

probability of fact can be drawn from the combined circumstances. Com. v. Perez: 931 

fact-finder unless the evidence is so weak and mconclosive that, as a matter of law, no 

Com. v. Hunzer, 868 A.2d 498, 506 (Pa. Super. 200,5). Any question of doubt is for the 

court's verdict it it is so contrary to the evidence as to shock one's sense of justice. .,. 

substitute its judgment for that of the finder of fact and may only reverse the lower 

Com. v Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). An appellate court cannot 

determine credibility and to decide whether to believe all, part or none of the evidence. 

the witnesses. When evidence conflicts, it is the sole province of the fact finder to 

who is free to believe all, part or none of the evidence and to determine the credibility of 

An appellate court may not re-weigh the evidence and substitute it~ judgment for 

that of the fact-finder. Id. The weight of the evidence is exclusively for the finder of fact, 

Jones, 954 A.2d 1194 (Pa. Super. 2008). 

sufficient to prove every element of the offense beyond a reasonable doubt. Com. v. 

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Mr. Elko testified that rt was the Defendant who entered his home on October 14, 

2011 with Mr Justin Charles (T.R 7/16/13, p. 22), returned to the home a short lime 

later and entered through the back door (T.R. 7/16/13, pp. 25, 50), and was ,n the 

kitchen during the minat demands for money and a "scuffle". (T.R. 7/16/13, pp. 26, 27, 

29-30, 31, 38, 42). He further testified that it was the Defendant who had possession of 

the gun when the Defendant, the co-Defendant and Mr. Charles went upstairs, when the 

This court will analyze the sufficiency of the evidence on the Robbery charge 

since that is the predicate offense upon which the felony murder rule applied. In order 

to be found guilty of Robbery - Serious Bodily Jnjury under 18 Pa.C.S.A. §3701 (a)(1 )(i), 

the Commonwealth was required to prove that the Defendant, during the course of a 

theft, inflicted serious bodily injury upon another. 18 Pa.C.S.A. §3701 (a)(i). When 

believed, Mr. Elka's testimony proves, beyond a reasonable doubt, all of the necessary 

elements to convict the Defendant of Robbery. 

pp. 21-35). Even though defense counsel engaged in a lengthy cross-examination of 

Mr Elko (T. R. 7/16/13, pp 40-60) in an attempt to discredit him and sully his credibility, 

this court chose to believe hrs version of what happened that day, which rs well-within its 

province. Lyons, supra. As this court stated earlier, Mr. Elko was a compelling witness. 

It certainly does not shock this court's conscience or sense of justice that he was 

determined to be credible. His testimony, alone, when believed, is sufficient evidence to 

uphold this verdict. 

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credibility, or lack thereof Despite these arguments, this court determined that Mr. Elko 

examination of witnesses and during closing arguments. (T. R. 7/16/13, pp. 40-60, 131- 

137). This court was well aware of the defense's perspective with r(;?gard to Mr. Elka's 

Matters Complained of on Appeal tB(b)). This court would first note that all of these 

,I 

points were ably argued by defense counsel throughout the trial, including through the 

' 

was no physical evidence of the Defendant's presence at the scene. (See Statement of 

identify physical characteristics or articles ot clothing of the perpetrators, and (5) there 

day, thereby affecting his ability to identify the perpetrators, (4) Mr. Elko was unable to 

during the time that he was in the presence of the perpetrators instead of focusing on 

the person or persons holding the gun, (3) Mr. Elko was a heroin user who used that 

the Defendant in order to properly identify him, (2) Mr. Elko was focused on the gun 

I 

believed or found to be credible because (1) the Defendant had insufficient time to see 

The Defendant states that Mr. Elka's identification of the Defendant should not be 

other crimes charged. 

Robbery, the predicate offense to the Second Degree Murder charge, as well as all 

Mr. Elke's testimony alone, when believed, is sufficient to convict the Defendant of 

Defendants were fleeing after attempting to commit a theft. (T.R. 7/16/13, pp. 32, 39). 

events occurred during the course of a theft (T.R. 7/16/13, pp. 29, 31, 53) and while the 

satisfying the element of infliction of serious bodily injury. Mr. Elko testified that these 

before a second shot was fired. (T.R. 7/16/13, pp. 31-33, 39). These shots ultimately 

caused the death of Mr. Justin Charles (T.R. 7/16/13, pp. 34-35, 111-114), thereby 

three (3) men came back downstairs .aner a shot had been fired, and in the seconds 

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30, 36, 38-39, 42, 43, 44, 45, 47-48, 50, 60, 87-88). 

the perpetrators of the crimes that occurred on October 14, 2011. (T.R. 7/16/13, pp. 22, 

~ 

; clear that he remembered the Defendant's face and was able to identify him as one of 

remember what the Defendant was wearing at the time of the murder, Mr. Elko made 

examination about the length of time that Mr. Elko saw the Defendant and his inability to 

the paragraph above. (T.R. 7/16/13, pp. 40-60). Despite the aggressive crosscross-examination about the alleged deficiencies in his credibility and perception cited in 

pp. 38-39, 87-88; Exhibit 4) to his trial testimony where he was subjected to an intense 

identification when presented with a photo array by Detective Hitchings (T.R. 7/16/13, 

day. Mr. Elko never wavered in his identification of the Defendant from his initial 

important was his certainty as to the identities of the men who entered his home that 

This court found Mr. Elko to be credible tor a number of reasons. Perhaps the most 

Jones, supra; Lyons, supra. 

judgment for the credibility determinations and findings of fact made by this court. 

death. (T.R. 7/16/13, pp. 146-14 7) The Superior Court should not substitute its 

in the robbery of Mr. Justin Charles, and who ultimately shot Mr. Charles, causing his 

Defendant who was present in Mr Elke's home on October 14, 2011, who participated 

was a credible witness and found, beyond a reasonable doubt, that 1t was the 

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Eugene McMiller at the time of the homicide, although he indicated that they were 

Defendant even acknowledged under questioning by Detective Costa that he was with 

that, when the Defendant was apprehended, he was with the co-Defendant, and the 

Defendant as Eugene McMiller. (T.R. 7/16/13, p. 37; Exhibit 3). Detectives testified 

scene. (TR. 7/16/13, p. 103). Mr. Elko identified the co-Defendant present with the 

the gun used in this shooting was a revolver since no shell casings were found at the 

(T.R. 7/16/13, pp. 111-114). Mr. Elko testified that the gun used in the crime was a 

revolver. (T.R. 7 /16/13, p. 35). Detective Costa also testified that it was his belief that 

Mr. Elko further testified that he heard two (2) gunshots during this incident. (T.R. 

7/16/13, pp. 32-33). The autopsy findings confirmed that Mr. Charles was shot twice. 

p. 32). The recording of the 911 phone call confirms this. (Exhibit 2). 

that he was on the phone with 911 dispatch when he heard the first shot. (T.A. 7/16/13, 

struggle there. (T. R. 7/16/13, pp. 93-95, 103-104; Exhibits 31, 32). Mr. Elko testified 

house where items were overturned and disturbed, indicating that there had been a 

when investigating the crime scene, noted that the kitchen was the only room in the 

(T.R. 7/16/13, pp. 116, 120). Mr. Elko testified that there was "tussling" in the kitchen 

between the Defendant and Mr. Charles. (T.R. 7/16/13, pp. 31, 52). Detective Costa, 

finger was found on the interior glass of the front storm door of Mr. Elke's residence. 

,/ 

door. (T.R. 7/16/13, pp. 25-26, 28). Co-Defendant McMiller's fingerprint of his left index 

Defendant, Eugene McMiller, who was standing by, and who had entered. his front 

corroborated Mr. Elka's version of events. Mr Elko testified that it was the coAdditionally, there was evidence presented during the course of the trial that 

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This court did not commit error 1n the handling of this case. It properly applied 

existing law to the case rn denying the defense's request for expert testimony regarding 

eyewitness identitrcatron. Further, this court heard the evidence in the case, made 

credibrlity determinations and chose to accept the eyewitness testimony of Mr. Elko. 

This court's factual findings and credibility determinations were properly made, were 

13 

CONCLUSION: 

While Mr. Elko may not have been able to recall the exact time of the incident or the 

type of shoes that the Defendant was wearing at the time, his testimony was believable 

and supported by the physical evidence at the crime scene. While it ls true that no 

forensic evidence linked the Defendants to this murder, that fact does not mean that the 

evidence presented at trial was insufficient to sustain the convictions here. It is often 

the case that forensic evidence is lacking at the scene of a crime. Circumstantial 

evidence is sufficient to prove the crimes charged here. Mr. Elko's testimony and the 

corroborative evidence identified above are sufficient to sustain this court's conviction of 

the Defendant. 

smoking marijuana together on his mother's porch at the time. (LR. 7/16/13, pp. 78-79, 

106-107). Additionally, Mr. Elko recalled that the Defendant was wearing a black 

hoodie at the time of thrs crime (T.R 7/16/13, pp. 42-44). A black hoodie was 

recovered from the Defendant's mother's house, where he was apprehended. (T.R. 

7 I 1 6/ 13, p. a 1 ) . 

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Date 

By the Court: 

supported by other evidence in the case, and should not be re-examined on appeal. 

This court's verdict should be upheld, and the Defendant's conviction and sentence 

should be affirmed. 

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