Com. v. Kennedy, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAL KENNEDY, SR.
Appellant No. 1262 EDA 2014
Appeal from the Judgment of Sentence December 17, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015289-2009
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 22, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Philadelphia County following Appellant’s conviction by a
jury on five counts of robbery, five counts of unlawful restraint, five counts
of false imprisonment, one count of aggravated assault, one count of
burglary, one count of criminal conspiracy, one count of possession of an
instrument of crime, one count of carrying a firearm without a license, one
count of possession of a firearm with manufacturer label altered, and one
count of carrying a firearm as a person not to use or possess firearms. 1 On
appeal, Appellant presents seven issues. After careful review, we affirm.
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1
18 Pa.C.S.A. §§ 3701, 2902, 2903, 2702, 3502, 903, 907, 6106, 6110.2,
and 6105, respectively.
*Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history are as follows: Appellant was
arrested in connection with a home invasion robbery, and he proceeded to a
jury trial with his co-defendant, Chal Kennedy, Jr., who is his adult son.
Appellant chose to represent himself at trial with Robert Dixon, Esquire,
serving as his back-up counsel.
At trial, Police Officer Charles Yeager testified that, on August 17,
2009, at approximately 2:20 p.m., he was on patrol with Police Officer
Daniel Rippert when a male pedestrian flagged down their police cruiser,
pointed to a house, and reported two armed men were holding his friend
inside of the house. N.T. Trial, 10/21/13, at 13-15. The officers radioed for
back-up, and then approached the house with Officer Rippert covering the
back and Officer Yeager covering the front. Id. at 16-17. Officer Yeager,
who was in full uniform, knocked on the front door, and a man who lived at
the house, later identified as Kahim Welton, opened the door, pointed at
Appellant, who was then seated on a living room couch, and yelled he has a
gun. Id. at 18. As Officer Yeager, along with other responding officers,
rushed into the house towards Appellant, Mr. Welton screamed that the gun
was under a couch cushion. Id. at 18-19. As Lieutenant John Ryan
handcuffed Appellant, Officer Yeager recovered a fully-loaded gun, as well as
a pair of mechanic’s gloves, from underneath the couch cushion upon which
Appellant was seated. Id. at 20.
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Meanwhile, Mr. Welton yelled that there was another person upstairs,
and accordingly, Officer Yeager proceeded cautiously up the steps. Id. at
22. At the top of the steps, he saw Takia Nichols, who lived at the home
with Mr. Welton, and three minor children cowering in the corner of a
bedroom. Id. at 23. Ms. Nichols reported another man was somewhere
upstairs. Id. Officer Yeager began looking for the other suspect and noticed
a bedroom window at the back of the house was open. Id. at 24. A short
time later, Officer Rippert reported over the police radio that a male suspect,
who was later identified as Appellant’s son, was taken into custody in the
backyard. Id.
Officer Yeager testified the police recovered a military-style Kevlar vest
from the back bedroom where the window had been opened. Id. at 40-41.
Also, he noticed Mr. Welton was upset and had markings, which appeared to
be from the sticky part of tape, on his arms. Id. at 40. Mr. Welton told the
officer the men had forced their way into the house at gunpoint, taped him
up, and then searched the house. Id. at 60. Officer Yeager indicated he
later completed a property receipt for the gun, which was seized from the
couch, and, at this time, he noticed the gun’s serial number had been
scratched off. Id. at 30-31. On cross-examination, Officer Yeager admitted
the gun was never checked for fingerprints or DNA. Id. at 57.
Police Officer Rippert confirmed that, as Officer Yeager approached the
front of the house, he approached the back. He indicated that, while he was
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in the backyard, he observed Appellant’s son open and jump out of a second
story window onto a small awning which was covering a porch. Id. at 71.
Once he landed on the ground, Officer Rippert took him into custody. Id. at
74. Officer Rippert searched Appellant’s son and recovered from his cargo
pant’s pockets two watches and a bracelet, which belonged to Ms. Nichols,
as well as a single .45 caliber bullet, a roll of black duct tape, and a pair of
black gloves. Id. at 76-79.
Ms. Nichols confirmed she and her three children lived at the subject
house with Mr. Welton, who was on house arrest, and, on the day in
question, she was shopping with her aunt. Id. at 114. When she returned
home with her hands full of packages and her purse, she knocked on the
front door and Appellant’s son, a man she had never seen before, answered
it. Id. at 115. Appellant’s son, who was wearing a bullet proof vest, pushed
her inside the house and down to the floor, removing her cell phone from
her purse. Id. at 116-17. Appellant’s son accompanied Ms. Nichols upstairs
to check on her children and then led her to the dining room, directing her to
sit in one of the chairs. Id. at 118. At this time, Ms. Nichols observed Mr.
Welton lying on the kitchen floor with his hands taped behind his back and
his legs taped together. Id. at 119. As Appellant stood over Mr. Welton,
Appellant’s son, who was holding a handgun, began pacing and asked when
is he going to bring it? Id. at 119-20. Ms. Nichols assumed he was
referring to drugs. Id. at 120.
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Appellant answered his ringing cell phone a few times, but Ms. Nichols
was unable to hear his conversation. Id. at 121. At some point, Appellant’s
son held a pillow over Mr. Welton’s face, put the handgun to the pillow, and
said he should shoot Mr. Welton. Id. When Mr. Welton’s cell phone rang,
the men directed her to answer it. Id. at 122. During the conversation, the
person who called asked her if he should call the police, and Ms. Nichols
said, “Yeah.” Id. at 123. Meanwhile, she observed as Appellant’s son
repeatedly placed a trash bag over Mr. Welton’s head making it difficult for
him to breathe. Id. Ms. Nichols testified that, during the incident, she did
not know the condition of her children and she was not permitted to go
upstairs to check on them. Id. at 125.
Ms. Nichols testified Appellant received another cell phone call and
then indicated someone was at the front door. Id. at 124. Believing it was
his brother, Mr. Welton said not to let his brother in because he did not want
him to be a part of the incident. Id. The men would not open the door, and
Mr. Welton attempted to reassure the men that “they are coming.” Id.
Ms. Nichols did not know to whom Mr. Welton was referring but the men
made it clear that they wanted whatever the people were supposed to be
bringing. Id. at 125.
Ms. Nichols indicated Appellant and his son held the five occupants in
the house for a few hours until Mr. Welton’s cell phone rang another time.
Id. at 125-26. Ms. Nichols held the phone to Mr. Welton’s ear and the caller
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indicated he was on his way. Id. at 126. At this point, Appellant’s cell
phone rang and, after he answered it, he told his son the police were outside
of the home. Id. Appellant began to panic, and Mr. Welton told them
someone most likely set off his house arrest monitor and, if they untied him,
he would “get rid of the cops.” Id. at 127. During this time, Ms. Nichols
saw a gun sitting on the kitchen countertop in front of Appellant. Id. at 161.
The men untied Mr. Welton and directed Ms. Nichols to sit on the
couch. Id. at 127. Ms. Nichols testified that, as Mr. Welton went to answer
the door, Appellant took off his gloves and put them, as well as the gun that
had been sitting on the countertop, underneath the sofa cushion; Appellant
then sat down on the sofa. Id. at 127, 161, 163-64. Ms. Nichols testified
that, when the police ran into the house, Appellant’s son ran upstairs, and
she did as well to protect her children. Id. at 128. She found her three
children hiding under a desk in her oldest son’s bedroom. Id. at 134-35.
Ms. Nichols confirmed the jewelry seized from Appellant’s son
belonged to her and had been stored in her bedroom dresser. Id. at 137-38.
Ms. Nichols testified that, prior to the day of the incident, she had never
seen a gun in her home. Id. at 159. In fact, she testified neither she nor
Mr. Welton owned a gun and she did not permit guns in her home because
she has children. Id. at 139. Ms. Nichols testified that during the incident
she felt threatened and the men made it clear she was not free to leave. Id.
at 162. Moreover, following the incident, she discovered Appellant and his
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son gained entry into the house when Ms. Nichols’ son opened the door for
them. Id. at 164.
Lieutenant Ryan testified he responded to Officer Yeager’s initial call
for back-up, and he followed Officer Yeager to the front door. He confirmed
that, when Mr. Welton answered the door, he pointed to the couch and
indicated Appellant, who was sitting on the couch, had a gun. Id. at 181.
Lieutenant Ryan further confirmed that, while he handcuffed Appellant, who
was struggling, Officer Yeager recovered a handgun from “underneath the
seat cushion on the couch where [Appellant] was seated.” Id. at 183.
Lieutenant Ryan patted down Appellant but found no weapons on his person.
Id. at 184.
Lieutenant Ryan indicated Mr. Welton and Ms. Nichols told him that the
suspects had several firearms in the house, and since only one firearm had
been seized by the police at this point, Lieutenant Ryan searched the house.
Id. at 185-192, 195, 208. In the front, upstairs bedroom, he noticed the
drawers were open, and he found two firearms stacked on top of each other
on a shelf next to a window. Id. at 185-87. Both firearms were loaded, and
one of them had a bullet in the chamber ready to be fired. Id. at 187-88.
Mr. Welton, who was at the time of trial incarcerated for crimes
unrelated to the instant incident, took the stand at trial as a Commonwealth
witness. However, he indicated he did not want to testify. N.T. 10/22/13,
at 18. Upon questioning by the prosecutor, he denied remembering whether
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any men or police arrived at his house on the date in question. Id. at 21-
22. However, he confirmed that, at the time of the incident, he was under
house arrest at the location in question, and he lived there with Ms. Nichols,
as well as three minor children, one of whom was his biological son. Id. at
19-20.
The prosecutor confronted Mr. Welton with his signed statement,
which he had given to the police immediately after the incident. Id. at 34-
36. In the statement, Mr. Welton indicated Appellant and his son gained
entry to the house under the false pretense of being house arrest officers
and, once inside, they asked Mr. Welton whether he had any drugs in the
house. Id. at 35. Also, Mr. Welton noted in the statement that Appellant,
who was older, seemed to be the one in control. Id. at 50. He further
indicated in the statement that the men threatened to kill one of the kids
and, in the hopes of “triggering an alarm that something was wrong,” Mr.
Welton called his brother using a “different name.” Id. at 35. He explained
in the statement that “[a]t one point the offender wearing the blue shirt
placed a bag over my head and placed a gun against the side of my head.”
Id. at 42. He indicated one of the offenders had a gun, while the other
offender had two guns. Id. at 52. Moreover, in the statement, he noted
that, after the police arrived and the men agreed to free him so that he
could open the door, he directed the police to Appellant and told them the
other offender was upstairs. Id. at 47-48.
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However, at trial, Mr. Welton testified he did not remember giving the
statement to the police, although he acknowledged he “must have signed it
because that’s my signature.” Id. at 43. The prosecutor also confronted
Mr. Welton with his preliminary hearing testimony in which he described the
home invasion; however, at trial, Mr. Welton indicated he did not remember
testifying at the preliminary hearing. Id. at 54-55.
On cross-examination, Mr. Welton denied that the handwriting on the
police statement was his writing and he indicated he did not remember
reading or signing the statement. Id. at 96. Mr. Welton testified he did not
remember being at the preliminary hearing. Id.
Detective Justin Montgomery testified he was assigned to investigate
the home invasion and, accordingly, he responded to the scene. He
confirmed he interviewed Mr. Welton at the scene on the day of the incident,
and at this time, Mr. Welton had on his right arm duct tape residue. Id. at
104. Detective Montgomery confirmed that, as Mr. Welton verbally indicated
what occurred, the detective handwrote the statement. Id. at 105-07. At
the conclusion of the interview, in Detective Montgomery’s presence, Mr.
Welton reviewed the statement and signed the bottom of each page. Id. at
107. Mr. Welton did not ask Detective Montgomery to make any changes to
the statement. Id.
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Cesar Mujica, a crime scene investigator, testified he examined the
two handguns, which had been found on the shelf in the house, and they
were negative for fingerprints. Id. at 171-72.
Police Officer Jesus Cruz, an officer with the firearms identification
unit, testified all three handguns seized by the police were operable. Id. at
201, 208, 210. He testified the serial number from the gun, which was
seized from underneath the couch cushion, was defaced. Id. at 202.
Assistant District Attorney (“ADA”) Noel Ann DeSantis testified she
prosecuted the case against Appellant and his co-defendant/son at the
preliminary hearing stage. N.T. Trial, 10/23/13, at 17-18. She confirmed
that Mr. Weldon testified at the preliminary hearing, and the notes of
testimony from the hearing were a “fair and accurate recording of the
testimony.” Id. at 19-20. She noted Mr. Weldon’s preliminary hearing
testimony was consistent with the signed statement he gave to Detective
Montgomery. Id. at 23. She further confirmed that, prior to the preliminary
hearing, she met briefly with Mr. Weldon and, at that time, he remembered
the details of the home invasion. Id. at 21.
After the Commonwealth entered into evidence a certificate of non-
licensure for Appellant, the Commonwealth rested and the defense declined
to call any witnesses. The jury convicted Appellant on the offenses indicated
supra, and on December 17, 2013, Appellant proceeded to a sentencing
hearing, at the conclusion of which the trial court sentenced Appellant to an
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aggregate of fifty years to one hundred years in prison.2 Appellant filed a
timely post-sentence motion, which was denied by operation of law on April
22, 2014, and this timely, counseled appeal followed. All Pa.R.A.P. 1925
requirements have been met.
In his first issue, Appellant presents sufficiency of the evidence claims.
The standard we apply when reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts regarding
a defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced is free to believe all, part or
none of the evidence. Furthermore, when reviewing a
sufficiency claim, our Court is required to give the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence.
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and
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2
We note Appellant’s co-defendant/son was also convicted of numerous
offenses in connection with the home invasion, and he was sentenced to an
aggregate of ten years to twenty years in prison.
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speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)
(quotation and citation omitted).
Appellant first contends the evidence was insufficient to sustain his
conviction for one count of aggravated assault as to Mr. Welton.
Specifically, he alleges the evidence does not establish that he caused Mr.
Welton serious bodily injury or that he attempted to cause him serious bodily
injury. Rather, Appellant argues “the evidence at trial demonstrated the
intent to scare the victim[.]” Appellant’s Brief at 17.
Appellant was convicted of aggravated assault under 18 Pa.C.S.A §
2702(a)(1), which provides, in relevant part, the following:
§ 2702. Aggravated assault
(a) Offense defined.—A person is guilty of aggravated assault
if he:
(1) attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life[.]
18 Pa.C.S.A. § 2702(a)(1) (bold in original).
“Serious bodily injury” is defined as “[b]odily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or
organ.” 18 Pa.C.S.A. § 2301. “For aggravated assault purposes, an ‘attempt’
is found where the accused, with the required specific intent, acts in a
manner which constitutes a substantial step toward perpetrating a serious
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bodily injury upon another.” Commonwealth v. Martuscelli, 54 A.3d 940,
948 (Pa.Super. 2012) (quotation and quotation marks omitted).
Where the victim does not suffer serious bodily injury, the
charge of aggravated assault can be supported only if the
evidence supports a finding of an attempt to cause such injury.
A person commits an attempt when, with intent to commit a
specific crime, he does any act which constitutes a substantial
step toward the commission of that crime. An attempt under
Subsection 2702(a)(1) requires some act, albeit not one causing
serious bodily injury, accompanied by an intent to inflict serious
bodily injury. A person acts intentionally with respect to a
material element of an offense when. . .it is his conscious object
to engage in conduct of that nature or to cause such a result. As
intent is a subjective frame of mind, it is of necessity difficult of
direct proof. The intent to cause serious bodily injury may be
proven by direct or circumstantial evidence.
Id. (citations, quotations, and quotation marks omitted).
In the instant case, it is undisputed that Mr. Welton did not suffer
“serious bodily injury” under the statutory definition of this term.
Accordingly, the relevant inquiry is whether Appellant attempted to inflict
serious bodily injury upon him. See id. In this regard, the trial court found
the following:
[T]he jury properly found [Appellant] guilty of aggravated
assault with respect to [Mr.] Welton. [Appellant] and [his co-
defendant] bound [Mr.] Welton’s hands and feet with duct tape,
placed a plastic bag over his head, and pointed a gun at his
temple. At [Appellant’s] suggestion, [Appellant’s co-defendant]
even retrieved a cushion from the couch to put between the gun
and [Mr.] Welton’s head in order to muffle the sound of gunfire,
demonstrating that they were contemplating shooting him.
These actions showed circumstances manifesting an extreme
indifference to the value of human life and were designed to
inflict serious bodily injury, or even death, on [Mr.] Welton.
Trial Court Opinion, filed 11/25/14, at 13.
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Viewed in the light most favorable to the Commonwealth, as verdict
winner, we agree with the trial court that the evidence sufficiently
demonstrated Appellant attempted to cause serious bodily injury to Mr.
Welton, and thus, the evidence was sufficient to sustain Appellant’s
conviction for aggravated assault. See Commonwealth v. McClendon,
874 A.2d 1223 (Pa.Super. 2005) (indicating a defendant may be convicted
of aggravated assault under an accomplice theory); Commonwealth v.
Russell, 460 A.2d 316 (Pa.Super. 1983) (indicating choking the victim
demonstrated an attempt to inflict serious bodily injury). We specifically
reject Appellant’s claim that the evidence proved, at most, that he had the
intent to scare Mr. Welton.
Appellant next contends the evidence was insufficient to sustain his
conviction for robbery as to the three children in the house.
Appellant was convicted of robbery under 18 Pa.C.S.A. §
3701(a)(1)(ii), which provides “[a] person is guilty of robbery if, in the
course of committing a theft, he:. . .threatens another with or intentionally
puts him in fear of immediate serious bodily injury.” 18 Pa.C.S.A. §
3701(a)(1)(ii). See Commonwealth v. Robinson, 936 A.2d 107(Pa.Super. 2007) (indicating robbery does not require completion of
predicate offense of theft); Commonwealth v. Everett, 443 A.2d 1142(Pa.Super. 1982) (indicating the defendant’s robbery conviction was
supported by sufficient evidence where he aided and abetted cohort in
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robbery). “An act shall be deemed ‘in the course of committing a theft’ if it
occurs in an attempt to commit theft or in flight after the attempt or
commission.” 18 Pa.C.S.A. § 3701(a)(2). A person commits the crime of
“theft by unlawful taking” if he unlawfully takes the movable property of
another with intent to deprive him thereof. 18 Pa.C.S.A. § 3921(a).
Here, Appellant was convicted on five counts of robbery. He concedes
the evidence was sufficient to sustain his robbery convictions as to Mr.
Welton and Ms. Nichols; however, he argues the evidence is insufficient to
sustain his conviction for robbery as to the three minor children.
Specifically, he argues the children were removed from the threatening
situation by being placed upstairs and were not direct targets of any threats.
In rejecting his claim, the trial court noted Appellant and his son, who
was wearing military-style camouflage clothing and a bullet proof vest,
forced their way into the victims’ home, and ordered the three children
upstairs. The record reveals the men were brandishing firearms and, during
the several hour incident, repeatedly went upstairs where the children were
separated from their adult family members. At one point, the men told Mr.
Welton they were going to kill one of the children. Further, the evidence
reveals the men searched the upstairs bedrooms and, after the police
arrived and Ms. Nichols ran upstairs, she discovered her three children
huddled under a desk. Also, when Officer Yeager went upstairs, he found
the children scared and huddled around their mother.
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Viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, the trial court properly found the
evidence sufficiently established the men threatened the children with or
intentionally put them in fear of immediate serious bodily injury.
Accordingly, the evidence was sufficient to sustain Appellant’s convictions on
three counts of robbery as to the children.
Appellant’s final sufficiency claim is the evidence was insufficient to
sustain his conviction as it relates to his three firearm offenses (one count of
carrying a firearm without a license, 18 Pa.C.S.A. § 6106, one count of
possession of a firearm with manufacturer label altered, 18 Pa.C.S.A. §
6110.2, and one count of carrying a firearm as a person not to use or
possess firearms, 18 Pa.C.S.A. § 6105). Specifically, he alleges there was
insufficient evidence establishing that he actually or constructively possessed
a firearm.3
“To prove possession of a firearm, the Commonwealth must establish
that an individual either had actual physical possession of the weapon or had
the power of control over the weapon with the intention to exercise that
control.” In re R.N., 951 A.2d 363, 369-70 (Pa.Super. 2008).
Instantly, Appellant’s argument focuses on the fact that, while a gun
was recovered by the police from underneath the couch cushion where
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3
Appellant does not challenge the sufficiency of the evidence as to the
remaining elements of his firearm offenses.
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Appellant was seated, the evidence does not sufficiently establish that
Appellant, as opposed to someone in the household, placed the gun in this
location. We reject Appellant’s argument and simply note that Ms. Nichols
testified she saw Appellant holding the gun, i.e., he was in actual physical
possession of the gun. The jury was free to accept this testimony and,
under our standard of review, we find no merit to Appellant’s sufficiency of
the evidence challenge. See Slocum, supra (setting forth our standard of
review).
In his second issue, Appellant alleges the jury’s verdict was against the
weight of the evidence.4
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.
Rather, the role of the trial judge is to determine that
‘notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.’ It has often been stated
that a new trial should be awarded when the jury's verdict is so
contrary to the evidence as to shock one's sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.
An appellate court's standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
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4
Appellant preserved his weight of the evidence claim in his post-sentence
motion. Pa.R.Crim.P. 607.
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evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court's
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
Commonwealth v. Clay, 619 Pa. 423, 431-32, 64 A.3d 1049, 1054-55
(2013) (citations, quotation marks, and quotations omitted).
Appellant contends the record reflects Mr. Welton’s trial testimony was
inconsistent with his preliminary hearing testimony, as well as the statement
he made to the police. Appellant notes “the evidence demonstrate[s] that
the complaining witness [Mr.] Welton refused to cooperate with the
Commonwealth[.]” Appellant’s Brief at 24. Thus, he contends the jury’s
verdict was against the weight of the evidence.
In rejecting Appellant’s claim, the trial court noted that, although Mr.
Welton was not wholly cooperative with the Commonwealth at trial, the jury
was presented with his police statement and preliminary hearing testimony,
which occurred closer in time to the incident. The jury was free to accept or
reject Mr. Welton’s testimony, and in particular, the jury was free to weigh
the reasons Mr. Welton was uncooperative at trial and determine what
impact, if any, his trial testimony should have on the verdict. See
Commonwealth v. Hanible, 612 Pa. 183, 212 n.11, 30 A.3d 426, 443 n.11
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(2011) (stating, “the jury was free to evaluate both [the witness]'s
statement to police as well as his testimony at trial recanting that statement,
and free to believe all, part, or none of the evidence[ ]”) (citation omitted).
Additionally, contrary to Appellant’s suggestion, Mr. Welton was not
the only complaining witness, and it is noteworthy that the jury heard
testimony from Ms. Nichols, who was also present during the home invasion.
Accordingly, the jury's verdict was not so contrary to the evidence as to
shock one's sense of justice, and the trial court did not abuse its discretion
in rejecting Appellant’s weight of the evidence claim. See Clay, supra.In his third issue, Appellant contends the trial court erred in denying
his pro se motion to dismiss pursuant to Pa.R.Crim.P. 600. Specifically, he
alleges the trial court erred in dismissing his pro se motion on the basis it
was undeveloped and vague, as well as dismissing it without an evidentiary
hearing. He further suggests the trial court improperly shifted the burden to
him to demonstrate the Commonwealth was not duly diligent.
Initially, we note our standard of review in this matter is to determine
whether the trial court abused its discretion. Commonwealth v. Hunt, 858
A.2d 1234, 1238 (Pa.Super. 2004) (en banc).
In its Pa.R.A.P. 1925(a) opinion, the trial court stated, in relevant part,
the following:
In the case at bar, there was no Rule 600[] violation. The
record shows that on the first day of trial, [Appellant] submitted
a motion under Rule 600[]; however, this motion merely added
up the days prior to trial and did not subtract excludable time.
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Th[e] [trial] [c]ourt informed [Appellant] that this was
insufficient and gave him more time to review the docket and
compute excludable and non-excludable time. (N.T. 10/21/13, p.
6-8).5 The next day, [Appellant] submitted an amended motion,
listing 12 court continuances, a 91 day delay caused by the
prison’s failure to bring [Appellant] to court even though a writ
was properly completed, and 16 days that were attributable to
the Commonwealth. However, he failed to argue how the
Commonwealth failed to exercise due diligence.6 Since
____________________________________________
5
Prior to the presentation of testimony on the first day of trial, the trial
court indicated:
I received a one page document from defense for
[Appellant] which raises a motion under Rule 660[]. The—this
documents does not address the time which was excludable due
to defense delays. It doesn’t address time that was not
excludable due to Commonwealth delays and any of the delays
which are attributable to the Court don’t count. So they don’t
count against the Commonwealth.
So what you’re going to have to do because I’m not going
to do your job. What you have to do is using case law you have
to tell me in writing which days are excluded and which days you
argue should not be excluded and your defense counsel--you can
ask your lawyer to help you with this but I’m not going to do it
for you because this would require what I did not want to do
before when I told you to write this up.
***
As you can see, [Appellant] only talks about--he just adds
up the days and you can’t just add up the days.
N.T. Trial, 10/21/13, at 6-7.
6
At the conclusion of testimony on the second day of trial, the trial court
indicated:
I received [Appellant’s] outline of the dates he has
itemized for his [Rule] 660[] motion. It indicates that there were
12 continuances that were court continuances.
***
Now, obviously the one that was 91 days that is attributed
to the district attorney on 3/11/2013 to 6/3/2013 it says district
attorney 91 days but its really the defendant was brought down
and a writ was done so you can’t show that the Commonwealth
was not duly diligent for that.
(Footnote Continued Next Page)
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[Appellant] was proceeding pro se, th[e] [trial] [c]ourt gave him
additional time to consult with back-up counsel and develop an
argument. (N.T. 10/22/13, p. 218-220). On the following day,
[Appellant] stated that he did not have any additional
information or arguments to present. Th[e] [trial] [c]ourt denied
[Appellant’s] motion, stating that “based upon the outline that
was submitted to me previously and the other page which says
relevant facts and procedural history are as follows, I’m going to
deny the defense motion under [Rule] 600[] to dismiss as
defense has failed to show the Commonwealth was not duly
diligent in bringing this case to trial.” (N.T. 10/23/13, p. 16). As
[Appellant] failed to demonstrate that any delay in his trial was
caused by the Commonwealth’s failure to exercise due diligence,
th[e] [trial] court properly denied his Rule 600[] motion to
dismiss.
Trial Court Opinion, filed 11/25/14, at 22-23 (footnotes added).
We find no abuse of discretion. The essence of Appellant’s appellate
argument is that the trial court erroneously dismissed his pro se Rule 600
motion “out of hand” and without a hearing. However, our review of the
record confirms Appellant is mistaken in this regard. Although the trial court
did not hold a “separate hearing,” the record confirms that, at various points
during Appellant’s trial, and generally at the conclusion or beginning of the
day’s testimony out of the presence of the jury, the trial court revisited the
_______________________
(Footnote Continued)
So then I’m not sure what the reasons were for these ones
that are attributed to the court. So you have to outline that
because according to this the Commonwealth is only responsible
for 16 days in the last four years which would not show that
they’re not duly diligent.
***
You need to consult with you[r] back-up counsel about. . .the
standard and case law[.]
N.T. Trial, 10/22/13, at 218-19.
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Rule 600 issue on the record, giving Appellant an opportunity to present
evidence or argument. N.T. Trial, 10/22/13, at 218-21; N.T. Trial, 10/23/13,
at 16. As the trial court repeatedly noted, it was not the trial court’s duty to
develop the evidence and argument for Appellant. N.T. Trial, 10/21/13, at
6; N.T. 10/22/13, at 220.
As to Appellant’s claim the trial court improperly shifted the burden to
him to demonstrate the Commonwealth was not duly diligent, Appellant did
not present this specific challenge in the trial court or in his court-ordered
Rule 1925(b) statement. In any event, we agree with the Commonwealth’s
responsive argument that the trial court did not reverse the burdens of
production and persuasion; but rather, required Appellant to develop his
motion and identify periods of time relevant to a Rule 600 analysis. See
Commonwealth v. Ramos, 936 A.2d 1097 (Pa.Super. 2007) (en banc)
(discussing in detail the analysis utilized in determining whether there has
been a violation of Pa.R.Crim.P. 600).
In his fourth issue, Appellant contends the trial court violated his right
of confrontation in improperly limiting defense counsel’s cross-examination
of Mr. Welton at trial. Specifically, Appellant contends the trial court
improperly precluded cross-examination of Mr. Welton regarding the
specifics of his prior convictions, as well as the the fact Mr. Welton was on
house arrest. Appellant suggests the ruling was improper because “[Mr.]
Welton’s supervision on house arrest. . .was a potential bias against
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Appellant. . .because it provided a reasonable motive for [Mr.] Weston to lie
and to deflect any inquiry that might jeopardize his house arrest.”
Appellant’s Brief at 29-30. He further suggests that, because of the trial
court’s limitation on cross-examination, “the jury was unable to adequately
assess all of the circumstances surrounding [Mr.] Welton’s trial testimony
and could not properly assess his credibility.” Id.Assuming, arguendo, the trial court erred in limiting Appellant’s cross-
examination of Mr. Welton, we conclude any error in this regard was
harmless error. While the trial court did not permit cross-examination
regarding the specifics of Mr. Welton’s prior convictions, the trial court
permitted cross-examination as to the fact Mr. Welton was on house arrest
at the time of the home invasion. N.T. Trial, 10/22/13, at 97. Moreover, on
direct-examination, Mr. Welton admitted that, at the time of the home
invasion, he was on house arrest and, at the time of Appellant’s trial, he was
incarcerated. Id. at 15, 19. Thus, although the cross-examination into Mr.
Welton’s past criminal history may not have been as extensive as Appellant
desired, the jury heard evidence regarding Mr. Welton’s house arrest and
criminal history.
Furthermore, the record reveals that, at Appellant’s trial, Mr. Welton
recanted and was hostile towards the Commonwealth. He claimed not to
remember the home invasion, to recognize either Appellant or Appellant’s
co-defendant, the police arriving at his house on the subject day, or
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speaking to any police officers. Therefore, we conclude Appellant has failed
to demonstrate how the alleged limitation placed upon Mr. Welton’s cross-
examination prejudiced Appellant. Accordingly, we find any error in this
regard constituted harmless error. Commonwealth v. Chmiel, 585 Pa.
547, 889 A.2d 501 (2005) (indicating harmless error exists where the error
did not prejudice the defendant or the prejudice was de minimis).
In his fifth issue, Appellant presents a claim of alleged prosecutorial
misconduct. Specifically, he contends ADA DeSantis, who prosecuted
Appellant’s case at the preliminary hearing stage, improperly bolstered and
vouched for Mr. Welton’s truthfulness and credibility when she testified as a
witness during Appellant’s trial. See Appellant’s Brief at 31-32. Appellant
indicates that “[w]hile Pennsylvania law does not currently prohibit an
assistant district attorney who has handled a prior phase of prosecution from
later testifying at the same defendant’s trial, the Commonwealth may not
use such testimony to improperly bolster a witness’ credibility in the eyes of
the jury.” Id. at 32 (citation omitted). In this vein, Appellant suggests ADA
DeSantis committed prosecutorial misconduct on direct-examination by
repeatedly characterizing Mr. Welton’s preliminary hearing testimony as
“truthful.” See N.T. Trial, 10/23/13, at 21-24. Appellant admits that, as to
ADA DeSantis’ testimony Mr. Welton had testified “truthfully,” the trial court
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sustained defense counsel’s objections;7 however, he alleges the trial court
erred in failing to provide a cautionary instruction to the jury, and therefore,
a new trial is warranted. Appellant’s Brief at 32, 34.8
Appellant has not set forth in his brief that place in the record where
he requested a cautionary instruction. In any event, we have reviewed the
record and have discovered that Appellant did not request a cautionary
instruction. Accordingly, Appellant has waived his claim that the trial court
erred in failing to provide a cautionary instruction regarding ADA DeSantis’s
testimony. Commonwealth v. Bryant, 579 Pa. 119, 141, 855 A.2d 726,
739 (2004) (“Failure to request a cautionary instruction upon the
introduction of evidence constitutes a waiver of a claim of trial court error in
failing to issue a cautionary instruction.”) (citations omitted);
Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa.Super. 2013) (noting
that “[e]ven where a defendant objects to specific conduct, the failure to
____________________________________________
7
Both Appellant and his co-defendant’s counsel objected to ADA DeSantis’s
testimony in this regard. N.T. Trial, 10/23/13, at 21-24.
8
Appellant also presents a one paragraph argument alleging ADA DeSantis
committed misconduct when she testified on cross-examination that “there
was nothing that was inconsistent that was in the discovery. I never had to
take out that statement to review it with him. He was honest with me.”
N.T. Trial, 10/23/13, at 25. In a one paragraph argument, Appellant asserts
“the reference to other discovery was improper.” Appellant’s Brief at 33.
However, Appellant has not developed this claim, and therefore, we decline
to address it further. Commonwealth v. McMullen, 745 A.2d 683(Pa.Super. 2000) (holding blanket assertions of error are insufficient to
permit meaningful review).
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request a remedy such as a mistrial or curative instruction is sufficient to
constitute waiver”).
In his sixth issue, Appellant contends he is entitled to a new trial on
the basis the prosecutor made remarks during closing argument which
constituted prosecutorial misconduct. Specifically, he alleges the prosecutor
made inflammatory statements based on facts which were not supported by
the evidence. We find Appellant has waived this claim, and consequently, no
relief is due.
In analyzing Appellant’s claim, we set forth the following relevant
portions from the prosecutor’s closing argument:
[PROSECUTOR]: Where Kahim Welton lives now has changed.
His circumstances have changed a lot. He lives in a place where
everything he does is dictated to him. What time he gets up.
What time he eats. What time he has to go to bed. Everything
is dictated to him. Where he goes. This is his one chance to be
in control again. His one chance. You know, but the law says,
the law recognizes that. The law knows that things happen from
the time a crime was committed until the time someone comes
into court and has to face the men that ransacked and terrorized
their family. He lives in a culture now where there is no
snitching. You don’t snitch. And everybody knows when you
come down here for a case that’s not yours - -
[APPELLANT’S CO-DEFENDANT’S COUNSEL]: Objection,
Your Honor. Wasn’t in evidence, Your Honor. I think we’re
testifying at this point.
THE COURT: Overruled.
[PROSECUTOR]: Everybody knows when you come to court for
a case that’s not yours, why you’re coming. He doesn’t want to
be a snitch. He has to go back in that wall. He has to go back
and live with those people.
N.T. Trial, 10/23/13, at 75 (bold in original).
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It is well settled that a claim of prosecutorial misconduct is waived on
appeal if the defendant did not lodge a contemporaneous objection to the
alleged impropriety at trial. Commonwealth v. May, 584 Pa. 640, 887
A.2d 750 (2005). Here, although Appellant’s co-defendant’s counsel
objected to the prosecutor’s remark, Appellant neither lodged his own
objection nor joined in his co-defendant’s objection. Appellant’s co-
defendant’s objection did not preserve the issue for Appellant for purposes of
appeal, and therefore, we find this issue to be waived. Commonwealth v.
Cannady, 590 A.2d 356, 362 (Pa.Super. 1991) (where the defendant did
not object, and he did not join in his co-defendant’s objection, the issue was
waived as to the defendant for purposes of appeal).
In his final issue, Appellant contends the trial court erred in failing to
instruct the jury properly that mere presence alone is insufficient to support
a conviction.
As the trial court noted in its opinion, the record reveals Appellant did
not request a mere presence instruction and he did not object to the trial
court’s jury instruction as it relates to a mere presence instruction. See N.T.
Trial, 10/23/13, at 114-17; Trial Court Opinion, filed 11/25/14, at 30. In
fact, at the conclusion of the charge to the jury, Appellant indicated he was
“okay” with the instruction and had no problem. N.T. Trial, 10/23/13, at
115-16. Accordingly, since Appellant did not object to the jury instruction,
we agree with the trial court that he has waived his challenge to the
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instruction on appeal. See Commonwealth v. Forbes, 867 A.2d 1268,
1274 (Pa.Super. 2005) (finding the appellant waived his challenge to the
court's instruction on the elements of burglary where he did not object to
that charge); Pa.R.A.P. 302(b).
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2016
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