Com. v. Maxwell, D. ( 2019 )

J-S63036-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
DAWAYNE MAXWELL, :
:
Appellant : No. 1891 EDA 2018
Appeal from the Judgment of Sentence Entered May 18, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010398-2016
BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 20, 2019
Dawayne Maxwell (Appellant) appeals from his judgment of sentence of
life in prison without parole, which was imposed after a jury convicted him of
first-degree murder and related charges. We affirm.
Briefly, Appellant was charged with first-degree murder and related
charges in connection with the shooting death of Alsharay Ford (the decedent)
on July 28, 2016. The decedent was shot while he was driving his car, after
picking his three-year-old daughter up from daycare. The decedent was not
the intended target of the shooting, but was caught in the crosshairs of a
shootout between individuals who lived in this Philadelphia neighborhood.
* Retired Senior Judge assigned to the Superior Court.
J-S63036-19
The trial court offered a thorough summary of the facts that were
presented at trial,1 which included testimony from one eyewitness, a
compilation of videos from cameras near the corner where the shooting
occurred, as well as several experts. Among the issues in the case was the
fact that Nasheed Jones, nephew of Appellant’s wife and an eyewitness who
had given a statement to police implicating Appellant, was not able to be
located to testify at trial. At trial, the trial court admitted Jones’ statement to
police as an exception to the rule against hearsay pursuant to Pa.R.E.
804(b)(6), which governs the admission of statements when they are “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.”2
Id.
On April 25, 2018, the jury convicted Appellant of the first-degree
murder of decedent, and on May 18, 2018, the trial court sentenced Appellant
as referenced above. Appellant timely filed a post-sentence motion, which
was denied by the trial court. Appellant timely filed a notice of appeal, and
both Appellant and the trial court complied with Pa.R.A.P. 1925.
1We adopt the facts as set forth in the trial court’s opinion. See Trial Court
Opinion, 11/7/2018, at 2-9.
2 This exception is also known as the forfeiture by wrongdoing exception.
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On appeal, Appellant contends that the evidence was insufficient to
sustain his conviction for first-degree murder because Appellant did not intend
to kill the decedent, that his conviction was against the weight of the
evidence,3 and that the trial court erred in admitting Jones’ statement. See
Appellant’s Brief at 7.
Following a review of the certified record and the briefs for the parties,
we conclude that the opinion of the Honorable Rose Marie DeFino-Nastasi
thoroughly addresses Appellant’s issues and arguments and applies the
correct law to facts that are supported by the record. We discern no error of
law or abuse of discretion. See Trial Court Opinion, 11/7/2018, at 9-12
(setting forth the standard of review for a challenge to the sufficiency of the
evidence and concluding that even though the decedent was not the intended
target of the shooting, the doctrine of transferred intent permitted the jury to
conclude that Appellant’s intent to kill the other men by shooting his gun at
them transferred to the decedent) and id. at 13-15 (concluding that it properly
admitted Jones’ statement after determining by a preponderance of the
3 Although Appellant presents this issue in his statement of questions involved,
he does not reference the weight of the evidence in the argument section of
his brief. Compare Appellant’s Brief at 7 with Appellant’s Brief at 18. Thus,
Appellant has waived this issue. See Pa.R.A.P. 2119(a). Nevertheless, even
if Appellant had not waived this issue, we would hold that the trial court did
not abuse its discretion in concluding that the verdict did not shock its
conscience, and would affirm on the portion of the trial court’s opinion that
addresses this issue. See Trial Court Opinion, 11/7/2018, at 13 (concluding
that Appellant’s “weight[-]of[-]the[-]evidence claim merits no relief”).
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evidence that Appellant was responsible for Jones’ failure to be able to be
located for trial).
Therefore, we adopt the trial court’s opinion of November 7, 2018 as
our own and affirm Appellant’s judgment of sentence based upon the reasons
stated therein.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/19
4 The parties shall attach a copy of the trial court’s November 7, 2018 opinion
to this memorandum in the event of further proceedings.
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