Com. v. Gooden, T. ( 2018 )

J-A03044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
TIMOTHY T. GOODEN,
Appellant No. 3506 EDA 2016
Appeal from the Judgment of Sentence September 9, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0003686-2014
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 18, 2018
Appellant, Timothy T. Gooden, appeals from the judgment of sentence
imposed following his jury conviction of attempted murder, aggravated
assault, robbery, kidnapping, carrying a firearm without a license, carrying a
firearm on a public street in Philadelphia without a license, possession of an
instrument of a crime, and four counts of criminal conspiracy.1 We affirm.
This case arises from the brutal robbery of Kevin Slaughter by Appellant
and his four co-defendants, Christopher Cooley, Kylieff Brown, Shaheed
Smith, and Kareem Cooley, after a chance meeting between Slaughter and
Brown at the SugarHouse Casino. We take the following facts and procedural
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 901, 2702, 3701, 2901, 6106, 6108, 907, and 903,
respectively.
J-A03044-18
history from the trial court’s March 10, 2017 opinion and our independent
review of the certified record.
On December 8, 2013, at approximately 8:00 p.m., Slaughter ran into
Brown, whom he knew from prison, at the casino. Brown told Slaughter that
he wanted to purchase cocaine and a handgun, and Slaughter responded that
he was able to sell both. Slaughter cashed out with $3,600.00 to $4,200.00,
and left the casino alone to drop off the money at his home in Northeast
Philadelphia.
Slaughter then returned to the casino to meet Brown and they drove to
South Philadelphia and picked up the drugs and gun. While they were driving,
Brown was on the phone, telling the person he was speaking with their exact
location. When Slaughter pulled over to stop at a store, a van drove by and
then quickly returned, veering out of its lane towards his vehicle. Slaughter
then looked in his rear-view mirror and saw Appellant slumped down on the
right side of his vehicle, creeping towards him with a gun. Slaughter
attempted to flee in the car, but Appellant fired bullets at it. The car crashed
into a telephone poll, and Slaughter exited it and started running.
Slaughter was shot in his lower back and two or three men threw him
into the van and tied him up with duct tape. The van fled the scene. Police
quickly responded to a 911 call of gunshots and arrested Brown and Kareem
Cooley, who had remained at the scene.
As the van traveled in the direction of center city, Appellant and
Christopher Cooley rode in the back with Slaughter. Appellant repeatedly
-2-
J-A03044-18
asked Slaughter where his money and drugs were, and threatened to kill and
burn him. Cooley pistol-whipped Slaughter numerous times, and put a gun in
his face. Appellant punched Slaughter in the face several times and knocked
out his front tooth. The men put a bag over his head at various points.
Slaughter gave Appellant his address and the cell phone number of his wife,
Samirah Savage, and told him to obtain the money he won at the casino from
her. The men drove to his home.
Samirah Savage received several phone calls from a blocked phone
number, which she did not answer. She then received a call from an
unblocked number, which she did not answer, and heard a knock on the front
door. She went to the door, and a man with a cellphone told her that her
husband was on the phone. She cracked the door open, took the phone, and
spoke with Slaughter. He told her that he was being followed, that the person
at the door was his friend, and to give the friend the money from the casino.
When she questioned Slaughter, he told her to do what he said, or they would
kill him. She gave the money and the phone to the man.
Once the conspirators had Slaughter’s money, they drove behind a high
school and threw him out of the van. Appellant or Cooley shot at him six
times, with a bullet passing through his face and neck. A resident of the
neighborhood heard gunshots, found Slaughter, and called 911. The
conspirators drove the van to another location, doused it with an accelerant,
and lit it on fire as a neighbor watched. Meanwhile, police responded to the
-3-
J-A03044-18
scene where Slaughter was shot, and he was airlifted to the hospital. He
underwent multiple surgeries and survived his injuries.
During the ensuing investigation, police obtained search warrants for
the defendants’ cellphone records, which showed frequent contact between
them immediately before, during, and after the crime. The Federal Bureau of
Investigation (FBI) was able to reconstruct the conspirators’ approximate
locations throughout the crime using historical cell site data.2 Appellant’s
cellphone was at the approximate site of each stage of the crime.
Arrest warrants were issued for those defendants not immediately
apprehended at the scene of the first shooting. Appellant was arrested on
February 25, 2014.
On June 13, 2016, a jury found Appellant guilty of the above-listed
offenses. On September 9, 2016, the trial court sentenced him to an
aggregate term of not less than twenty nor more than forty years’
incarceration, followed by ten years of probation. On October 25, 2016, the
____________________________________________
2 Special Agent William B. Shute of the FBI testified that historical cell site
analysis is when investigators take the information contained in a suspect’s
call detail records, which are generated as a result of the suspect’s phone
calls, and analyze the calls and depict them onto a map. (See N.T. Trial,
6/01/16, at 40). The phone number of the phone attributable to Appellant
was (267) 670-6898. (See id. at 63).
-4-
J-A03044-18
court denied Appellant’s timely post-sentence motion without a hearing. This
timely appeal followed.3
Appellant raises the following questions for our review:
1. Whether the trial court erred in admitting into evidence the
identifying information of the names of individuals saved in
cellular phone address books on two occasions[?]
2. Whether the trial court erred in admitting into evidence hearsay
as to the identity of Christine Moore as the owner of a specific cell
phone number and her relationship with Appellant[?]
3. Should Appellant be awarded an arrest of judgment on all
charges as there is insufficient evidence to sustain the verdict[?]
4. In the alternative, should Appellant be awarded a new trial as
the greater weight of the evidence does not support the verdict[?]
(Appellant’s Brief, at 4) (commentary omitted).
At the outset, we note that Appellant’s first two issues challenge the trial
court’s admission of certain evidence. (See id.). Our standard of review
relative to the admission of evidence is for an abuse of discretion. See
Commonwealth v. Kuder, 62 A.3d 1038, 1053 (Pa. Super. 2013), appeal
denied, 114 A.3d 416 (Pa. 2015).
Appellant first argues that the trial court erred in admitting hearsay
evidence, in the form of cellphone address-book contact entries of his alleged
nickname “Shooter” or “Da Shoota,” in the cellphones of Kareem Cooley and
Christopher Cooley. (See Appellant’s Brief, at 8-10; see also N.T. Trial,
____________________________________________
3 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on December 4, 2016. The trial court entered an
opinion on March 10, 2017. See Pa.R.A.P. 1925.
-5-
J-A03044-18
5/23/16, at 185-86, 258, 262-63 (Kareem and Christopher Cooley’s contact
entries listing the phone number of “Shooter/Da Shoota” as (267) 670-6898)).
This issue is waived.
It is well-settled:
Rule 1925 is intended to aid trial judges in identifying and
focusing upon those issues which the parties plan to raise on
appeal. Rule 1925 is thus a crucial component of the appellate
process. When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues. In other words, a Concise Statement which is too vague
to allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all. While
[Commonwealth v.] Lord[,] [719 A.2d 306 (Pa. 1998) ] and its
progeny have generally involved situations where an appellant
completely fails to mention an issue in his Concise Statement, . .
. Lord . . . also appl[ies] to Concise Statements which are so
vague as to prevent the court from identifying the issue to be
raised on appeal.
Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super. 2016) (one
citation omitted).
Here, the issue Appellant listed in his Rule 1925(b) statement regarding
the cellphone contact entries failed to identify for the trial court the hearsay
issue he sought to pursue on appeal. (See Rule 1925(b) Statement,
12/04/16, at unnumbered pages 1-2 ¶ 3). The trial court found that:
“[Appellant] fails to state with specificity how the court erred.” (Trial Court
-6-
J-A03044-18
Opinion, 3/10/17, at 39).4 The court assumed that Appellant challenged its
admission of the cellphone contact entries on the basis of improper
authentication. It proceeded to analyze the authentication issue in the body
of its opinion, relegating its rejection of any potential hearsay claim to a brief
footnote. (See id. at 39-42). Therefore, because the trial court had to guess
what issue Appellant was appealing, he failed to preserve his claim properly.
See Ray, supra at 1114. Accordingly, Appellant’s first issue is waived.5
____________________________________________
4 Appellant’s Rule 1925(b) statement provides: “The [c]ourt erred in
admitting into evidence the identifying information of the names of individuals
saved in cellular phone address books on two occasions. The first was the
names and associated phone numbers found in the cellular phone found on
and attributed to Kareem Cooley. (See N.T. Trial, 5/24/16, at 3). The second
was the names and associated phone numbers found in the cellular phone
found on and attributed to Christopher Cooley. (See N.T. Trial, 5/23/16, at
151).” (Rule 1925(b) Statement, at unnumbered pages 1-2 ¶ 3) (record
citation formatting provided). The record reflects discussions among the
attorneys and the trial court regarding several legal issues concerning the
cellphone contact entries, including authentication, hearsay, and relevance.
(See N.T. Trial, 5/23/16, at 151-54; N.T. Trial, 5/24/16, at 3-7, 12).
5Moreover, we agree with the Commonwealth’s assessment that the cellphone
contact entries were not hearsay. (See Commonwealth’s Brief, at 12, 15).
“Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted in the statement.” Kuder, supra at 1055 (citation omitted); see
also Pa.R.E. 801(c).
Here, the contact entries were not offered to prove the truth of the
matter asserted, i.e., that the listed phone number in the entries ((267) 670-
6898) belonged to Appellant. (See Commonwealth’s Brief, at 12 (explaining
that evidence was offered to show relationships among parties involved in
crime)); see also Kuder, supra at 1055 (extrajudicial statement is not
hearsay where it is not offered to prove truth of its contents). In fact,
Appellant himself gave (267) 670-6898 as his phone number to the police one
month after the incident involving Slaughter, when he was the victim of a
-7-
J-A03044-18
Appellant next argues that the trial court erred in admitting hearsay
evidence regarding his alleged relationship with a woman named Christine
Moore, which he argues was used to connect him to phone number (267) 670-
6898. (See Appellant’s Brief, at 11-13). Appellant directs this Court to
Detective Robert Daly’s testimony describing Moore as his girlfriend. (See id.
at 12). This claim is waived.
As the Commonwealth points out, Appellant’s argument on this issue is
underdeveloped, and does not contain a single case citation to support his
assertion that the detective’s testimony constituted impermissible hearsay.
(See id. at 11-13; Commonwealth’s Brief, at 20-21). It includes no discussion
of legal authority, save a bare passing reference to Pennsylvania Rule of
Evidence 802 and the Sixth Amendment to the United States Constitution.
Appellant therefore waived his second issue. See Pa.R.A.P. 2119(a)-(b);
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super. 2014) (en
banc), appeal denied, 104 A.3d 1 (Pa. 2014) (“The Pennsylvania Rules of
Appellate Procedure require that each question an appellant raises be
supported by discussion and analysis of pertinent authority, and failure to do
so constitutes waiver of the claim.”) (citation omitted).
Moreover, it would not merit relief. As previously noted, “[h]earsay is
an out-of-court statement offered to prove the truth of the matter asserted in
____________________________________________
shooting. (See Trial Ct. Op., at 19, 39 n. 20; see also N.T. Trial, 5/20/16, at
142-44; N.T. Trial, 5/24/16, at 65-66, 69). Therefore, Appellant’s first issue
would not merit relief, even if it were not waived.
-8-
J-A03044-18
the statement.” Kuder, supra at 1055 (citation omitted). “[A] ‘Statement’
means a person’s oral assertion, written assertion, or nonverbal conduct, if
the person intended it as an assertion.” Pa.R.E. 801(a). “As a general rule,
hearsay is inadmissible, because such evidence lacks guarantees of
trustworthiness fundamental to our system of jurisprudence.” Kuder, supra
at 1055 (citation omitted); see also Pa.R.E. 802.
Here, the following exchange took place between the Commonwealth
and Detective Daly on redirect examination:
Q. Counsel [for Christopher Cooley] asked you who Christine
Moore is.
A. That’s correct.
Q. Who is Christine Moore?
[Counsel for Appellant:] Objection, hearsay. . . .
THE COURT: Overruled.
Q. Who is Christine Moore?
A. [Appellant’s] girlfriend.
(N.T. Trial, 5/26/16, at 114).
Upon review, we conclude that the challenged testimony did not
constitute hearsay because Detective Daly did not relay “an out-of-court
statement” made by anyone. Kuder, supra at 1055 (citation omitted). The
detective merely stated his own conclusion regarding the status of Moore’s
relationship with Appellant, based on his investigation. Therefore, the trial
-9-
J-A03044-18
court did not abuse its discretion in allowing the testimony. See id. at 1053.
Appellant’s second issue would merit no relief, even if it were not waived.
In his third issue, Appellant challenges the sufficiency of the evidence
supporting his conviction. (See Appellant’s Brief, at 13-15). This issue is also
waived.
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as here, the
appellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth must prove beyond
a reasonable doubt.
Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015)
(citations and quotation marks omitted) (finding sufficiency claim waived and
declining to address issue where Rule 1925(b) statement failed to identify
relevant elements or crimes).
Here, the trial court found that Appellant waived his sufficiency claim by
failing to set forth with particularity in his Rule 1925(b) statement the
elements of each crime the Commonwealth allegedly did not prove beyond a
reasonable doubt. (See Trial Ct. Op., at 29). We agree. Specifically, in his
Rule 1925(b) statement, Appellant generically argued: “That [he] should be
awarded an arrest of judgment on all charges as there is insufficient evidence
to sustain the verdict. The Commonwealth did not prove that [he] was a
principal, an accomplice or a conspirator to any of the events in question.”
(Rule 1925(b) Statement, at unnumbered page 1 ¶ 1). Appellant’s concise
- 10 -
J-A03044-18
statement does not specify which element or elements of the relevant crimes
the Commonwealth failed to establish beyond a reasonable doubt.6 This
vague assertion is inadequate to preserve his sufficiency claim for appellate
review. See Freeman, supra at 1248. Therefore, Appellant has waived his
third issue.7
In his final issue, Appellant challenges the weight of the evidence
supporting his conviction, arguing that the jury’s verdict shocks the conscience
because Slaughter initially identified another man, Raheem Turner, in a photo
spread as the man who shot him. (See Appellant’s Brief, at 16-18).8 This
issue is also waived.
____________________________________________
6 We recognize that, in every criminal prosecution, the Commonwealth must
prove beyond a reasonable doubt that the defendant was the perpetrator of
the offense, and that identity is an implicit element of each crime. See
Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973);
Commonwealth v. Broadwater, 90 A.2d 284, 285 (Pa. Super. 1952). Here,
the Commonwealth presented substantial evidence of Appellant’s involvement
in the incident, and viewing all the evidence admitted at trial in the light most
favorable to the Commonwealth, as we must under the relevant standard of
review, there was sufficient evidence to establish Appellant’s identity beyond
a reasonable doubt. See Commonwealth v. Duck, 171 A.3d 830, 835 (Pa.
Super. 2017).
7Appellant has also waived this issue by failing to develop it adequately in his
brief. (See Appellant’s Brief, at 13-15); see also Pa.R.A.P. 2101, 2119(a)-
(b). Although the jury convicted him of numerous crimes, ranging from
attempted murder to firearms violations, he does not set forth the elements
of the crimes he is challenging, or otherwise identify the specific elements he
disputes. (See Appellant’s Brief, at 13-15).
8Appellant neglected to provide this Court with any citations to the record to
support his claim. See Pa.R.A.P. 2119(c) (mandating that an appellant
provide references to record). Our review reveals that Slaughter identified
- 11 -
J-A03044-18
Specifically, Appellant waived his weight claim premised on Slaughter’s
identification of Raheem Turner by failing to raise it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3); see also Commonwealth v.
Petteway, 847 A.2d 713, 717 (Pa. Super. 2004) (concluding appellant waived
weight claim by failing to raise it with trial judge). In the motion, Appellant
challenged the weight of the evidence only on the basis that the parties
presented unspecified “conflicting statements and conflicting physical
evidence[.]” (Post-Sentence Motion, 9/12/16, at unnumbered page 2 ¶ 4).
Appellant did not refer to Slaughter’s photo array identifications or to Raheem
Turner at all.
Likewise, in his Rule 1925(b) statement, Appellant only vaguely argued
that: “[he] must be awarded a new trial as the greater weight of the evidence
does not support the verdict. The greater weight did not support any
proposition finding [Appellant] guilty as a principal, an accomplice or a
conspirator. The verdict was based on speculation, conjecture and surmise.”
(Rule 1925(b) Statement, at unnumbered page 1 ¶ 2). This statement did
not identify Appellant’s specific claim centered on Slaughter’s initial
identification of Raheem Turner; consequently, the trial court did not discuss
this claim in its opinion. (See Trial Ct. Op., at 38-39) (addressing and finding
____________________________________________
Appellant as the perpetrator from a photo array, and that he repeatedly
identified Appellant as the principal offender of the episode during trial. (See
N.T. Trial, 5/18/16, at 83-84, 88, 90, 96-97, 100, 112, 114, 120). Slaughter
also testified that he initially mistakenly identified Raheem Turner as the
shooter in a photo array, and that he informed law enforcement of this error.
(See id. at 118-121, 206, 213-215, 218-22).
- 12 -
J-A03044-18
meritless only vague assertion raised in Rule 1925(b) statement). Therefore,
Appellant’s final issue is waived for this reason as well. See Pa.R.A.P.
1925(b)(vii); see also Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)
(claims not raised in Rule 1925(b) statement are waived).9 Accordingly, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/18
____________________________________________
9 Moreover, Appellant’s weight claim would not merit relief. The jury heard
Slaughter’s numerous in-court identifications of Appellant as the perpetrator,
and also heard testimony regarding his initial identification of Turner. (See
supra, at *11-12 n.8). The jury, as fact-finder, was free to believe all, part,
or none of the evidence, and to assess Slaughter’s credibility. See
Commonwealth v. Hicks, 151 A.3d 216, 223 (Pa. Super. 2016), appeal
denied, 168 A.3d 1287 (Pa. 2017). After review of the record, we discern no
abuse of discretion regarding the trial court’s denial of Appellant’s weight
claim. See id. (noting this Court’s extremely limited standard of review
concerning weight claims, confined to whether trial court abused its discretion
in finding jury’s verdict did not shock its conscience).
- 13 -