Com. v. Leach, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBIN LEACH,
Appellant No. 2296 EDA 2015
Appeal from the Judgment of Sentence of October 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002066-2012
BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 04, 2017
Appellant, Robin Leach, appeals from the judgment of sentence
entered on October 29, 2014, as made final by the denial of her post-
sentence motion on March 7, 2015. We affirm.
The factual background and procedural history of this case is as
follows. In or around 2000, Yolanda Harper (“Harper”) and Steven Shipley
(“Shipley”) began a romantic relationship. In November 2010, Harper
learned that Shipley was also in a romantic relationship with Appellant.
Thereafter, Appellant began sending Harper threatening and harassing
messages via a variety of electronic platforms. In those messages,
Appellant demanded that Harper terminate her relationship with Shipley.
Beginning in August 2011, Appellant began harassing Harper on a daily
basis, including sitting in her vehicle outside of Harper’s residence.
* Retired Justice specially assigned to the Superior Court
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On November 25, 2011, Harper observed Appellant sitting in her
vehicle outside of Harper’s residence. When Harper complained to Shipley,
he requested that Harper meet him at his place of employment. Harper and
her daughter, Vashti Wilks (“Wilks”), then traveled to Appellant’s place of
employment. Appellant, along with several other individuals, followed
Harper to Shipley’s place of employment. Shipley got into Harper’s vehicle
and they, along with Wilks, drove away. Appellant followed them in her
vehicle. When Harper, Shipley, and Wilks stopped at a gas station,
Appellant and the other occupants of her vehicle exited the vehicle and
began harassing Harper, Shipley, and Wilks. Appellant urged her daughter,
one of the occupants of her vehicle, to physically assault Wilks.
Harper, Shipley, and Wilks began driving to the nearest police station.
When they were one block from the police station, Appellant’s vehicle and
several other vehicles surrounded Harper’s vehicle. Appellant exited her
vehicle and told Shipley, who was sitting in Harper’s passenger seat, that
she had ten more vehicles coming and that Harper was going to be
murdered that evening. Eventually, Harper made it to the police station.
Unfortunately, police declined to file charges and instead instructed Harper
to file a private criminal complaint.
When Harper arrived back at her residence there were several vehicles
located in front of her home. When Shipley exited Harper’s vehicle, Tyrone
McDuffie (“McDuffie”) fired a single shot which struck Shipley in the chest.
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Harper rushed Shipley to the hospital. McDuffie and Appellant were arrested
for attempting to murder Shipley. While Appellant was free on $200,000.00
bond, she continued to harass Harper.
The Commonwealth charged Appellant via criminal information with
attempted murder,1 solicitation to commit murder,2 aggravated assault,3
conspiracy to commit aggravated assault,4 solicitation to commit aggravated
assault,5 possessing an instrument of crime,6 simple assault,7 recklessly
endangering another person,8 two counts of stalking,9 two counts of making
terroristic threats,10 and two counts of harassment.11 Shipley testified at the
preliminary hearing held on February 15, 2012.
1
18 Pa.C.S.A. §§ 901, 2502.
2
18 Pa.C.S.A. §§ 902, 2502.
3
18 Pa.C.S.A. § 2702(a)(1).
4
18 Pa.C.S.A. §§ 903, 2702.
5
18 Pa.C.S.A. §§ 902, 2702.
6
18 Pa.C.S.A. § 907(a).
7
18 Pa.C.S.A. § 2701(a)(1).
8
18 Pa.C.S.A. § 2705.
9
18 Pa.C.S.A. § 2709.1(a)(1).
10
18 Pa.C.S.A. § 2706(a)(1).
11
18 Pa.C.S.A. § 2709(a)(1).
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On October 3, 2014, Appellant’s trial commenced. Shipley failed to
appear for trial and the trial court admitted his preliminary hearing
testimony over Appellant’s objection. On October 11, 2013, a jury found
Appellant guilty of attempted murder, aggravated assault, conspiracy to
commit aggravated assault, solicitation to commit aggravated assault, two
counts of making terroristic threats, and two counts of stalking. On October
29, 2014, the trial court sentenced Appellant to an aggregate term of 10 to
20 years’ imprisonment.
Appellant filed a timely post-sentence motion which was denied by
operation of law on March 7, 2015. Appellant did not file a timely notice of
appeal. On May 7, 2015, Appellant filed a petition pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On July 16,
2015, the PCRA court granted Appellant’s petition and reinstated her direct
appellate rights nunc pro tunc. This appeal followed.12
Appellant presents three issues for our review:
1. Did the [t]rial [c]ourt err, abuse its discretion, and unfairly
prejudice [Appellant] when [it] overruled an objection and
permitted the prosecutor to read an unavailable witness[’]
testimony from a preliminary hearing into the record?
12
On August 11, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On September 4, 2015, Appellant filed her concise
statement. On December 23, 2015, the trial court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellant’s concise
statement.
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2. Was the evidence sufficient as a matter of law to convict
[Appellant] of [c]riminal [c]onspiracy to commit [a]ggravated
[a]ssault?
3. Was the verdict against the weight of the evidence?
Appellant’s Brief at 6.13
In her first issue, Appellant argues that the trial court erred by
admitting Shipley’s preliminary hearing testimony. We review the trial
court’s evidentiary rulings for an abuse of discretion. Commonwealth v.
Tyack, 128 A.3d 254, 257 (Pa. Super. 2015) (citation omitted).
Admission of preliminary hearing testimony at trial is governed by
Pennsylvania Rule of Evidence 804(b), which provides in part that:
The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding
or a different one; and
13
Appellant is represented by retained counsel and was not granted leave to
proceed in forma pauperis before this Court. As such, she was required to
file a reproduced record with this Court. See Pa.R.A.P. 2151 et seq. As
this Court has stated, the failure to file a reproduced record is an “abject”
failure to comply with the Pennsylvania Rules of Appellate Procedure and
warrants dismissal of an appeal. McGee v. Muldowney, 750 A.2d 912, 913
n.1 (Pa. Super. 2000); see In re Crespo, 738 A.2d 1010, 1013 n.2 (Pa.
Super. 1999) (“Compliance with the Pennsylvania Rules of Appellate
Procedure [] regarding the contents of reproduced records on appeal is
mandatory.”). In this case, Appellant failed to file a reproduced record.
Although we could quash or dismiss this appeal pursuant to Pennsylvania
Rule of Appellate Procedure 2101, we exercise our discretion and decline to
dismiss or quash this appeal.
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(B) is now offered against a party who had—or, in a civil
case, whose predecessor in interest had—an opportunity
and similar motive to develop it by direct, cross-, or
redirect examination.
***
(6) Statement Offered Against a Party That Wrongfully Caused
the Declarant's Unavailability. A statement offered against
a party that wrongfully caused--or acquiesced in
wrongfully causing--the declarant's unavailability as a
witness, and did so intending that result.
Pa.R.Evid. 804(b).
In this case, the trial court found that the Shipley’s testimony was
admissible under Rule 804(b)(6). See N.T., 10/8/13, at 20, 22. In order for
prior testimony to be admissible under Rule 804(b)(6), the Commonwealth
must prove “by a preponderance of the evidence that: (1) the defendant . . .
was involved in, or responsible for, procuring the unavailability of the
declarant and (2) the defendant acted with the intent of procuring the
declarant’s unavailability as an actual or potential witness.”
Commonwealth v. King, 959 A.2d 405, 414 (Pa. Super. 2008) (internal
quotation marks, ellipsis, and citation omitted).
In this case, Appellant was living with Shipley at the time of trial. She
accepted service of the Commonwealth’s notice to Shipley that he was
required to attend the trial. See N.T., 10/8/13, at 77. The bench warrant
issued for Shipley’s arrest was served at Appellant’s residence, when
Appellant’s son was at home. See id. at 79. It is also evident that Shipley
was in an abusive relationship with Appellant. From this circumstantial
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evidence, the trial court reasonably concluded that Appellant wrongfully
caused Shipley’s absence from the trial. Therefore, Shipley’s preliminary
hearing testimony was admissible under Rule 804(b)(6). Thus, Appellant is
not entitled to relief on her first issue.14
In her second issue, Appellant argues that the evidence was
insufficient to convict her of conspiracy to commit aggravated assault.
“Whether sufficient evidence exists to support the verdict is a question of
law; our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (citation
omitted). “In assessing Appellant’s sufficiency challenge, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that the Commonwealth proved
[each] element of the crime beyond a reasonable doubt.” Commonwealth
v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted). “The
evidence need not preclude every possibility of innocence and the fact-finder
is free to believe all, part, or none of the evidence presented.”
Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation
omitted).
In order to convict a defendant of conspiracy to commit an offense,
“the Commonwealth must establish the defendant: 1) entered into an
14
Rule 804(b)(6) does not infringe upon Appellant’s Confrontation Clause
rights. See Crawford v. Washington, 541 U.S. 36, 62 (2004).
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agreement to commit or aid in an unlawful act with another person or
persons; 2) with a shared criminal intent; and 3) an overt act was done in
furtherance of the conspiracy.” Commonwealth v. Dantzler, 135 A.3d
1109, 1114 (Pa. Super. 2016) (en banc) (internal quotation marks and
citation omitted). “[A] conspiracy may be inferred where it is demonstrated
that the relation, conduct, or circumstances of the parties, and the overt
acts of the co-conspirators sufficiently prove the formation of a criminal
confederation.” Commonwealth. v. Orie Melvin, 103 A.3d 1, 43 (Pa.
Super. 2014) (citation omitted).
In this case, there was overwhelming circumstantial evidence to
support Appellant’s conviction for conspiracy to commit aggravated assault.
Appellant told Shipley that “You just do you. F**k me too good and not [sic]
it’s my turn to f**k you. I should have just made you my bitch because you
damn sure ain’t no man.” N.T., 10/9/2013, at 23. Appellant also told
Shipley, “Like I told you, this is going to be the last time that you’re going to
reject me.” Id. at 35. Furthermore, she told Shipley that she was the
person responsible for calling various individuals to follow Harper and Wilks
to Shipley’s place of employment and ten more vehicles full of her
confederates were on the way to intercept Harper, Wilks, and Shipley. See
N.T., 10/7/15, at 75.
Appellant argues that the evidence shows that she was attempting to
harm Harper and Wilks, not Shipley. She contends that the statement made
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to Shipley while Harper’s car was stuck in traffic on the way to the police
station proves that she was not conspiring to harm Shipley. As noted above,
however, Appellant also threatened Shipley by stating that this was the last
time he would reject her. Moreover, Appellant told Shipley that she
intended to exact revenge for his actions. Contrary to Appellant’s
contention, these statements were not vague and ambiguous in light of the
surrounding circumstances. Appellant not only followed Harper but she also
followed Shipley and Wilks from Shipley’s place of employment to the gas
station and then to the police station. She drove dangerously close to the
vehicle Shipley was riding in on an interstate and then proceeded to
dangerously confront Shipley, Harper, and Wilks in the middle of a busy
intersection. Combined, the jury reasonably concluded that Appellant
conspired with McDuffie to assault Shipley. Accordingly, we conclude that
there was sufficient evidence to convict Appellant of conspiracy to commit
aggravated assault.
In her final issue, Appellant argues that the verdict was against the
weight of the evidence. A challenge to the weight of the evidence must first
be raised at the trial level “(1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing; or (3) in a
post-sentence motion.” In re J.B., 106 A.3d 76, 97 (Pa. 2014) (citation
omitted). Appellant properly preserved her weight of the evidence claim by
raising the issue in her post-sentence motion.
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“[A] new trial based on a weight of the evidence claim is only
warranted where the [] verdict is so contrary to the evidence that it shocks
one’s sense of justice.” Commonwealth v. Tejada, 107 A.3d 788, 795-
796 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa. 2015) (internal
alteration and citation omitted). This Court merely assesses the exercise of
the trial court’s discretion, “we do not reach the underlying question of
whether the verdict was, in fact, against the weight of the evidence.”
Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015)
(citation omitted).
Appellant argues that the verdict was against the weight of the
evidence for essentially the same reasons that she argues there was
insufficient evidence to convict her of conspiracy to commit aggravated
assault. She contends that there was no evidence that there was
communication between her and McDuffie on the day that McDuffie shot
Shipley. Again, this argument ignores the fact that Appellant told Shipley
that she was the person responsible for gathering the individuals that
followed Harper, Wilks, and Shipley from Shipley’s place of employment to
the police station. Appellant also told Shipley that she had ten more
vehicles full of confederates on the way. The jury determined that one of
these confederates was McDuffie. Together with the text messages sent by
Appellant to Shipley, the jury determined that Appellant conspired with
McDuffie to shoot Shipley.
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We conclude that the trial court reasonably determined that the jury’s
verdict did not shock its sense of justice. There was substantial evidence
presented at trial that Appellant was intent on obtaining revenge against
Harper and Shipley. She not only followed Harper to Shipley’s place of
employment and then to a police station, but she continued her harassing
behavior after leaving the police station. She even continued her criminal
behavior towards Harper after being released on bond while awaiting trial on
the pending charges. From the totality of the evidence presented, the trial
court reasonably determined that the jury’s verdict did not shock its sense of
justice. Accordingly, Appellant is not entitled to relief on her weight of the
evidence claim.
Judgment of sentence affirmed.
Judge Solano joins this Memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2017
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