Com. v. Sinclair, K. ( 2023 )

J-A01015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHALIF ABDULRUA SINCLAIR :
:
Appellant : No. 1289 EDA 2022
Appeal from the Judgment of Sentence Entered March 30, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001690-2021
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 21, 2023
Khalif Abdulrua Sinclair (Appellant) appeals from the judgment of
sentence entered in the Montgomery County Court of Common Pleas following
his jury convictions of first-degree murder, persons not to possess firearms,
possession of an instrument of crime (PIC), and recklessly endangering
another person (REAP).1 On appeal, Appellant contends: (1) the jury’s verdict
was against the weight of the evidence; and (2) the trial court erred in denying
his request for an involuntary manslaughter jury instruction. For the reasons
below, we affirm.
The underlying charges stem from the November 20, 2020, homicide of
Abdur Small (the Victim). Earlier that day, Appellant went to Donte Holland’s
____________________________________________
1 18 Pa.C.S. §§ 2502(a), 6105(a), 907(a), and 2705, respectively.
J-A01015-23
home at 502 W. Lafayette St., Norristown, Montgomery County, looking to
fight Holland. N.T., 3/28/22, at 98. Holland testified that he “heard banging
[and] someone . . . throwing stuff at [the] door.” Id. Appellant and Holland
got into a heated verbal argument about Appellant’s ex-girlfriend, Jhanely
Rodriguez (Girlfriend), outside the house. See id. at 98-99. Appellant was
living with Girlfriend next door to Holland, until Appellant was evicted the day
before as Girlfriend had obtained a temporary Protection From Abuse Order
against him. N.T., 3/29/22, at 100-02. Appellant was arguing with Holland
about Holland’s prior “one night stand” with Girlfriend. See N.T., 3/28/22, at
49; N.T., 3/29/22, at 102.
Christopher Hall, Holland’s brother and a resident of 502 W. Lafayette
St., witnessed the interaction between Holland and Appellant. Hall testified
that Appellant “felt disrespected” and said, “Watch y’all kids, watch ya’ll crib.”
N.T., 3/28/22, at 49. Shawn McCray, Holland’s neighbor across the street,
recalled that Appellant threatened Holland, stating, “[I]f you don’t want to die,
don’t be here when I get back.” Id. at 89.
Appellant then called Nafees Smith (Brother), his brother, asking for a
gun. N.T., 3/29/22, at 39. Brother did not have one, but picked up Appellant
in Norristown and drove him to a friend’s house in King of Prussia. Id. at 39-
40. Brother then drove Appellant back to Norristown. Id. at 40. He told
Montgomery County Detective Anthony Caso that he parked by an apartment
complex “across from the Norristown Transportation Center.” Id. at 54.
-2-
J-A01015-23
Detective Caso explained there is “a tunnel” in the Transportation Center that
connects the apartment complex and the Schuylkill River Trail. Id. at 55.
Appellant walked through that tunnel to eventually return to 502 W. Lafayette
St. Id. The Commonwealth presented surveillance footage evidence showing
Appellant walking around the block for 15 minutes before he entered the
porch. Trial Ct. Op., 8/17/22, at 8.
Around 5:00 p.m., Appellant arrived at 502 W. Lafayette St. The Victim,
who was not at the house earlier, and Holland were downstairs. See N.T.,
3/28/22, at 104. They heard someone trying to get into the house, but the
door was locked. Id. at 105. Hall testified that he sold drugs at the house,
and it was not unusual that strangers would knock at the door. Id. at 51.
Holland stated that the person at the door said, “[G]ang, gang,” which was a
“friendly term,” and that his name was “Timmy” or “Tommy.” Id. at 106,
108-09. Holland went upstairs to get Hall and when they looked out the
window, they saw a man in a ski mask wearing all black. Id. at 106. It was
dark outside, and they could not identify the man. Id.
As Holland and Hall were walking down the stairs, the front door opened
and gun shots were fired. N.T., 3/28/22, at 109-10; see also id. at 53.
Holland dove under a table to take cover. Id. at 100-10. Hall, who was in
the living room at this point, fired his own gun at least twice. N.T., 3/28/22
at 54-55. Appellant and the Victim were standing in the doorway area. Id.
at 54. After the shooting, Hall discovered that the Victim had been shot in the
-3-
J-A01015-23
head. Id. at 55. Everyone immediately called the police. Id. at 56. One of
Hall’s stray bullets — not Appellant’s — hit the Victim. See id. at 55.
A few days after the shooting, Appellant asked Girlfriend to take him to
his sister’s house in Chester. N.T., 3/29/22, at 104.
The Commonwealth also presented the expert testimony of Detective
Terrance Lewis of the Montgomery County Forensic Services Unit, summarized
by the trial court as follow:
[Detective Lewis] recovered two 9-millimeter fired cartridge
casings, one right next to the doorway . . . and . . . one . . . a
couple of feet . . . from the doorway. A fired projectile was found
in the basement area. There were two strike marks, i.e., an area
that is believed to have been struck by a bullet, in the living room,
and a small projectile was recovered from one of those strike
marks. More strike marks were found above the steps, and by
the front window in the living room. . . .
Detective Lewis would not know when the strike marks were
made, unless there was something else there to indicate when it
was struck, such as some debris that was fresh.
Trial Ct. Op. at 12-13 (record citations omitted & paragraph break added).
Pertinently, Detective Lewis also testified “the strike mark above the stairs
was consistent with a .38 revolver.” Id. at 20.
Appellant was charged with first-degree murder, persons not to possess
firearms, PIC, and REAP. A three-day jury trial commenced on March 28,
2022. On the second day of trial, out of the jury’s presence, Appellant’s
counsel requested an involuntary manslaughter jury instruction. N.T. 3/29/22
at 6. The trial court deferred ruling on the matter until all evidence had been
presented. Id. at 7.
-4-
J-A01015-23
Appellant did not testify at trial but presented character witnesses; his
mother, sister, and friends testified he has a reputation for being a peaceful
and law-abiding citizen. See N.T., 3/29/22, at 150, 155, 158, 161.
At the close of the evidence, Appellant again requested an involuntary
manslaughter jury instruction. N.T., 3/29/22, at 177. In support, Appellant
argued the evidence showed his “bullet was shot over the head of Donte
Holland, causing return fire[,]” and “[Appellant] did not intend to kill him but
it was reckless.” Id. (emphasis added).
On the last day of trial, the trial court denied Appellant’s jury instruction
request, finding the evidence did not support intent consistent with
involuntary manslaughter. N.T., 3/30/22, at 3-4. The court considered the
evidence that Appellant had “already expressed his intentions of killing” and
intentionally returned to the house armed with a gun, and found the shooting
did not “just happen[ ] as a result of total recklessness.” Id. at 4.
The trial court then gave its final instructions to the jury. Immediately
thereafter, the court asked the parties whether they had any additions or
corrections. N.T., 3/30/22, at 85. Pertinently, Appellant replied, “No.” Id.
The jury found Appellant guilty of first-degree murder by transferred
intent,2 persons not to possess firearms, PIC, and REAP. Appellant waived his
____________________________________________
2The doctrine of transferred intent provides that “the intent to murder may
be transferred when the person actually killed is not the intended victim.”
(Footnote Continued Next Page)
-5-
J-A01015-23
right to a presentence investigation. On the same day, the trial court imposed
concurrent sentences of life imprisonment for murder, one to two years for
persons not to possess firearms, one to two years for PIC, and one to two
years for REAP.
Appellant filed a timely post-sentence motion on April 7, 2022,
challenging: (1) the weight of the evidence; and (2) the denial of the
involuntary manslaughter jury instruction request. On the same day, the trial
court denied the post-sentence motion.
Appellant filed a timely notice of appeal on May 6, 2022, and complied
with the trial court’s order to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Is [Appellant] entitled to an arrest of judgment and/or new
trial in the above-captioned matter on the ground that the jury’s
verdict was against the weight of the evidence since the evidence
did not support a finding of specific intent to kill because it showed
that [Appellant] merely fired over [the] top of Donte Holland into
the ceiling over the staircase of 502 W. Lafayette St[.]?
2. Did the lower court err in denying [Appellant’s] request for an
involuntary manslaughter jury instruction since evidence existed
supporting such a charge, namely, analysis of the crime scene
that revealed evidence from which the jury could potentially infer
that [Appellant] did not intend to kill Donte Holland, but rather,
merely fired over [the] top of Holland into the ceiling over the
staircase of 502 W. Lafayette St.?
____________________________________________
Commonwealth v. Jones, 912 A.2d 268, 279 (Pa. 2006), citing 18 Pa.C.S.
§ 303(b)(1).
-6-
J-A01015-23
Appellant’s Brief at 3.
First, Appellant asserts that the jury’s verdict was against the weight of
the evidence because there was no evidence he had a specific intent to kill.
Appellant’s Brief at 11. We note the relevant standard of review for challenges
to the weight of the evidence:
The weight of the evidence is exclusively for the finder of fact, who
is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses. Resolving contradictory
testimony and questions of credibility are matters for the finder of
fact. It is well-settled that we cannot substitute our judgment for
that of the trier of fact.
Moreover, [a]ppellate review of a weight claim is a review of the
exercise of discretion, not the underlying question of whether the
verdict is against the weight of the 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 [or is
not] 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.
Furthermore, in order for a defendant to prevail on a challenge to
the weight of the evidence, the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the
court.
Commonwealth v. Miller, 172 A.3d 632, 642-43 (Pa. Super. 2017)
(citations and quotation marks omitted).
Further, this Court will not find an abuse of discretion
based on a mere error of judgment, but rather . . . when the [trial]
court has reached a conclusion which overrides or misapplies the
law, or where the judgment exercised is manifestly unreasonable,
-7-
J-A01015-23
or the result of partiality, prejudice, bias or ill-will. Importantly,
[this C]ourt should not find that a trial court abused its discretion
merely because [we] disagree[ ] with the trial court’s conclusion.
Indeed, when reviewing the trial court’s exercise of discretion, it
is improper for [this C]ourt to step[ ] into the shoes of the trial
judge and review the evidence de novo. In other words, [this
C]ourt may not disturb a trial court’s discretionary ruling by
substituting its own judgment for that of the trial court.
Commonwealth v. Gill, 206 A.3d 459, 467 (Pa. 2019) (citations and
quotation marks omitted).
Appellant does not challenge his liability under the theory of transferred
intent. Instead, he contends the evidence merely showed he “negligently or
recklessly fir[ed] a shot over the head [of] Donte Holland.” Appellant’s Brief
at 12. In support, Appellant reasons:
The only evidence of a firearm being fired into the property – the
position from which [Appellant] would have been firing – was a
strike mark that entered the ceiling of the first floor at the top of
the stairs leading to the second floor. Such a shot, however,
would have been well over the heads of Donte Holland and the . . .
other occupants and thus, was inconsistent with the intent to kill.
...
Id. Appellant avers that the jury’s finding of a specific intent to kill “shocks
the [conscience].” Id. We conclude no relief is due.
We note:
In order to find a defendant to be guilty of first-degree murder, a
jury must find: (1) a specific intent to kill; and (2) malice.
Pursuant to the doctrine of transferred intent, the intent to murder
may be transferred where the person actually killed is not the
intended victim. . . .
Jones, 912 A.2d at 279, citing 18 Pa.C.S. § 303(b).
-8-
J-A01015-23
[“S]pecific intent to kill can be inferred from the circumstances
surrounding an unlawful killing. Because a person generally
intends the consequences of his act, specific intent to kill may be
inferred from the fact that the accused used a deadly weapon to
inflict injury to a vital part of the victim’s body.”
Commonwealth v. Geathers, 847 A.2d 730, 737 (Pa. Super. 2004).
In denying relief, the trial court reasoned:
[Appellant] wanted the jury to believe that the strike mark above
the steps was a strike mark from the day of the murder, which
was a fact the jury had to determine[,] and that it was made by
[Appellant’s] firearm, which [he] claimed was a revolver, which
was another fact the jury had to determine. . . .
Trial Ct. Op. at 20. However, “the jury did not credit [this] theory of the
evidence,” but instead “credit the evidence of [Appellant’s] specific intent to
kill Holland.” Id. The trial court cited the following evidence:
[Appellant] threatened to return to Holland’s house after the
verbal argument in order to kill him; [Appellant] did in fact return
with a firearm; [and] he lied in wait for Holland[,] surreptitiously
tried to gain entry into the home by pretending he was someone
friendly to the home’s residents[,] and when the door opened and
Holland was in his sight he shot off his firearm. This evidence was
demonstrated and corroborated through several witnesses and
video surveillance. . . .
Id. at 20-21. Thus, the trial court determined that the verdict was supported
by the weight of the evidence. Id. at 21.
Appellant does not address or dispute the trial court’s reasoning. He
merely focuses on the evidence of the strike mark at the top of the staircase.
Appellant’s Brief at 12. Appellant ignores the trial court’s discussion of the
evidence that he: threatened Holland during an argument earlier in the day;
asked his brother for a gun and when Brother did not have one, they drove to
-9-
J-A01015-23
a friend’s house to retrieve one; rode back with the gun and had Brother park
away from the house; walked around the house for 15 minutes before
approaching the front door; disguised himself with a ski mask; pretended to
be someone else when he tried to gain entry to the house; and finally, shot in
Holland’s direction once the door was opened. Appellant also ignores the trial
court’s discussion that the expert witness testified he could not determine
when the strike mark was made.
We emphasize the jury was free to consider all the evidence presented
at trial. See Miller, 172 A.3d at 642-43. Indeed, a jury “who hears witness
testimony first-hand is able to take into account not only the words that are
spoken and transcribed, but the witnesses’ demeanor, tone of voice,
mannerisms, and the like.” Commonwealth v. Johnson, 231 A.3d 807, 818
(Pa. 2020). Here, the jury considered all the testimony and video surveillance
footage presented. We decline to substitute our credibility determinations for
that of the jury. See Gill, 206 A.3d at 467; Miller, 172 A.3d at 642-43.
Therefore, we affirm the trial court’s determination that the weight of the
evidence supports the jury’s verdict.
Second, Appellant challenges the trial court’s denial of his request for
an involuntary manslaughter jury instruction. Appellant’s Brief at 13.
Appellant contends that the court “employed an incorrect standard of review”
because it did not view the evidence in the light most favorable to him. Id.
at 15. He argues:
- 10 -
J-A01015-23
In its 1925(a) opinion, the trial court . . . states, “[t]here was no
direct evidence suggesting [the strike mark at the top of the
stairs] was from his firearm or whether that strike mark was even
made on the night of the murder. It was a defense theory, not
evidence.”
This holding is incorrect [because] it ignores that in addressing
the propriety of a jury instruction requested by the defense, the
court must[ ] view the evidence in the light most favorable to the
defendant. . . .
Id. at 15-16 (citations and some quotation marks omitted). Appellant insists
the jury could have inferred, from the evidence of the strike mark at the top
of the staircase, that he did not intend to kill Holland. Id. at 16. We determine
this issue is waived.
When reviewing a challenge to jury instructions, this Court’s standard
of review is well-settled:
the reviewing court must consider the charge as a whole to
determine if the charge was inadequate, erroneous, or prejudicial.
The trial court has broad discretion in phrasing its instructions,
and may choose its own wording so long as the law is clearly,
adequately, and accurately presented to the jury for its
consideration. A new trial is required on account of an erroneous
jury instruction only if the instruction under review contained
fundamental error, misled, or confused the jury.
Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009). However, in
order to preserve an objection to jury instructions, a party must make a
specific objection after the trial court reads the instructions, before jury retires
to deliberate. Commonwealth v. Cosby, 224 A.3d 372, 421 (Pa. Super.
2019), vacated on other grounds, 252 A.3d 1092 (Pa. 2021).
- 11 -
J-A01015-23
Here, although Appellant requested a jury instruction on involuntary
manslaughter, he did not object to the jury instructions after they were given
to the jury. See N.T., 3/30/22, at 85. The court asked both parties if there
were “any additions or corrections to [the] instructions,” and both parties said,
“[N]o.” Id. As a result, the jury instruction issue is waived for our review.
See Cosby, 224 A.3d at 421.
Moreover, even if Appellant had properly objected to the jury
instruction, we would agree that no relief is due. Involuntary manslaughter is
a killing that occurs when, as a direct result of the doing of an
unlawful act in a reckless or grossly negligent manner, or the
doing of a lawful act in a reckless or grossly negligent manner, an
individual causes the death of another person. An instruction on
involuntary manslaughter is not required unless it has been made
an issue in the case and the facts would support such a verdict.
Fletcher, 986 A.2d at 790 (quotation marks omitted), citing, inter alia, 18
Pa.C.S. § 2504(a).
In this case, the trial court explained that “the facts developed at trial
did not reasonably support a finding of involuntary manslaughter.” Trial Ct.
Op. at 24. We agree. As discussed earlier, Appellant threated Holland during
an argument, returned a few hours later with a gun, wearing a ski mask;
attempted to gain entry to the house, and shot in Holland’s direction once the
door opened. The trial court found the evidence was inconsistent with
involuntary manslaughter or recklessness. Again, Appellant cites only the
evidence that supports his argument and disregards all the surrounding facts
that the trial court discussed in its opinion.
- 12 -
J-A01015-23
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2023
- 13 -