Com. v. James, R

J-A21011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHANN JAMES,
Appellant No. 243 EDA 2013
Appeal from the Judgment of Sentence August 31, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004752-2011
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 07, 2014
Rashann James appeals from his August 31, 2012 judgment of
sentence of fifteen to thirty years incarceration followed by five years
probation. The trial court imposed sentence after a jury convicted Appellant
of attempted murder, aggravated assault, firearms not to be carried without
a license, carrying a firearm on a public street in Philadelphia, and
possession of an instrument of crime. After careful review, we affirm.
The facts giving rise to the charges were summarized by the trial
court:
On November 19, 2010, at approximately 1:00 p.m., the
Complainant (Stephanie Alexander) walked to a laundromat with
her son Khalil, her daughter Shanay, and her granddaughter
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Assaiah. Before they arrived, Shanay and Assaiah went to
another store while the Complainant and Khalil walked to the
laundromat. While walking, Complainant noticed two men
outside of a store on the 2600 block of Stanley Street. She
Once they arrived at the laundromat, Complainant and her
son entered and asked Johnny, the owner, for change. After
receiving the change, the Complainant turned around and saw
Appellant approximately [twenty] feet away. The Appellant
pulled a gun from his waistband and frantically pointed the gun
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Johnny immediately fled to the back of the store and Khalil
followed, leaving the Complainant alone with Appellant.
The Complainant approached the Appellant and said,
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Appellant then approached Complainant, put the gun to the right
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Complainant dropped to her knees and put her head down just
as Appellant pulled the trigger. Complainant heard a click and
tried to unjam the gun, but he was unable to. The Appellant
then s
the Complainant called the police.
After the police arrived, they took the Complainant and
Investigations Unit. At Central Division, the Complainant met
explained how the Appellant tried to murder her. The
Complainant described the Appellant as a black male,
approximately [forty-three to forty-four] years old, [six foot two
inches], a thin build, light skinned, and a small beard under his
ran a computer image search and showed her electronic pictures
of various suspects. However, the Complainant said none
matched her assailant. A week after the incident, Detective
Keppol showed the Complainant additional pictures at her house,
home a second time. On this date, Detective Keppol showed her
a photo array of seven people, and she quickly identified the
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Appellant. On April 26, 2011, the Complainant identified
Appellant again at a preliminary hearing.
After the preliminary hearing, Khalil gave the Complainant
a cell phone with a caller on the other end of the line. The
him to the laundromat to retaliate against the Complainant
who investigated an unrelated murder on August 22, 2010 on
the 2600 block of Stanley Street.
Trial Court Opinion, 11/27/13, at 4-6. (footnotes and internal citations to
the record omitted) (emphases omitted).
On September 21, 2011, Appellant filed an omnibus pre-trial motion in
limine seeking to exclude three evidentiary matters. First, Appellant sought
to preclude the Commonwealth from introducing evidence of two murders,
purportedly unrelated to this case, occurring on Redner and Stanley Streets,
respectively. Second, Appellant sought to exclude evidence regarding shots
timonial
evidence of an admission made to Complainant over the phone was
inadmissible.
On January 10, 2012, after argument on the motion, the trial court
excluded evidence of the Redner Street murder1, but tentatively permitted
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1
The Redner Street murder is a reference to CP-51-CR-0009461-2011, a
murder case that was pending against Appellant at the time of the instant
trial. The Commonwealth advised the court that it did not intend to mention
that case. N.T., 1/10/12, at 8. Appellant was subsequently convicted on
(Footnote Continued Next Page)
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evidence of the Stanley Street murder to be introduced as it was relevant to
motive in the present case. That evidence was subsequently admitted.
.2 The trial court
ruled that the phone conversation during which Appellant admitted that he
was the assailant at the laundromat was sufficiently authenticated to be
admissible.
The jury convicted Appellant of the aforementioned charges on
January 13, 2012, and the court sentenced him to an aggregate sentence of
fifteen to thirty years incarceration followed by five years probation. On
September 10, 2012, Appellant filed a post-sentence motion alleging, inter
alia, that the evidence was insufficient to sustain the verdict, that the verdict
was against the weight of the evidence due to inconsistent identification
prejudicial, and that the trial court abused its discretion in admitting
evidence of the telephone call without authentication. On January 9, 2013,
this motion was dismissed by operation of law pursuant to Pa.R.Crim.P.
_______________________
(Footnote Continued)
September 11, 2013 of two counts of first-degree murder, among other
charges, and sentenced to two consecutive terms of life imprisonment
without parole. Appellant was not charged in connection with the Stanley
Street murder.
2
Since Complainant willingly testified at trial, the trial court did not permit
evidence that shots were fired at her house to be admitted.
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720(B)(3). Appellant immediately appealed and complied with the trial
complained of on appeal. The trial court filed its Rule 1925(a) opinion on
November 27, 2013.
s argument.
We excise the argument and restate the questions as follows:
I. Did the trial court abuse its discretion by allowing
[Complainant] to testify to the contents of [a phone call] that
included both evidence of motive and the only evidence of a
confession?
II. Did the trial court abuse its discretion by allowing both
[Complainant] and Detective Brian Peters to testify about an
unsolved murder that did not involve [Appellant]?
III. Was the evidence insufficient as a matter of law to identify
[Appellant] as the perpetrator beyond a reasonable doubt?
IV. Did the trial court abuse its discretion by not ruling on
-trial motions in limine to exclude evidence of
both the phone call and the prejudicial other acts evidence] until
after the opening arguments?
-5.
sufficiency of the evidence, because a sufficiency challenge, if successful,
entitles the defendant to discharge.3
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3
We do not evaluate sufficiency of the evidence challenges based upon
review of a diminished record. Commonwealth v. Palmer, 751 A.2d 223,
227 (Pa.Super. 2000). If the evidentiary issues raised by Appellant are
deemed meritorious, the proper relief is a new trial.
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In analyzing such claims, "we must determine whether the
evidence admitted at trial, and all reasonable inferences drawn
therefrom, when viewed in a light most favorable to the
Commonwealth as verdict winner, support the conviction beyond
a reasonable doubt." Commonwealth v. Brown, 2012 PA
Super 150, 52 A.3d 320, 323 (Pa.Super. 2012). Critically
important, we must draw all reasonable inferences from the
evidence in favor of the Commonwealth as the verdict-winner.
Commonwealth v. Hopkins, 2013 Pa. Super. 122, 67 A.3d 817,
820 (Pa.Super. 2013). "Where there is sufficient evidence to
enable the trier of fact to find every element of the crime has
been established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail." Brown, supra at 323. Of course,
"the evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented." Id.
The Commonwealth can meet its burden "by wholly
circumstantial evidence and any doubt about the defendant's
guilt is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances." Id. It is
improper for this Court "to re-weigh the evidence and substitute
our judgment for that of the fact-finder." Id. Additionally, "the
entire record must be evaluated and all evidence actually
received must be considered." Id.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).
Appellant claims the evidence is legally insufficient because
He points to the fact that Complainant first described her assailant as six-
foot-two inches tall, then later as five-foot-seven inches tall.4
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4
Detective Edward Keppol testified that the Complainant described her
approximately 6-2; thin build; light skinned; small beard under his chin;
wearing a dark-colored hooded sweat jacket; and he was also missing a
(Footnote Continued Next Page)
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brief at 37. Complainant initially reported that the gun placed at her head
was black in color, and subsequently identified it as silver. Id.
The evidence herein, when viewed in the light most favorable to the
Commonwealth, i
Complainant testified that her assailant was one and one-half feet to two
feet away from her for several minutes. His face was uncovered. She
described him to police as a black male with light skin, tall, with a beard,
and missing teeth. He was the same man she had seen with the man she
Stanley Street as she entered the laundromat. N.T., 1/12/12, at 14-15.
The Complainant subsequently selected Appellant as her assailant from a
photographic array. She identified him at a preliminary hearing and again at
trial as the man who held the gun to her head in the laundromat. Id. at 8.
She was completely sure that Appellant was the man who attempted to kill
her. We find such identification testimony legally sufficient to support the
convictions.
Under the guise of sufficiency, Appellant argues that inconsistencies in
color of the gun and
_______________________
(Footnote Continued)
Appellant was approximately six feet tall. Id. at 127.
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evidence insufficient. He also points out that four eyewitnesses were not
called to testify.5
statements go to the weight rather than sufficiency of the evidence. The
evidence.6 Appellant generally alleged that the verdict was against the
weight of the evidence in his post-trial motion, and he reiterated that claim
in his Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Thus, it is preserved. Regardless, it affords no relief.
In Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013)
(internal citations and quotations omitted), our High Court explained the trial
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
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5
The Commonwealth presented the testimony of Detective Edward Keppol,
who detailed his investigation of the instant case. He testified that he
two of the witnesses but they were unavailable.
6
was insufficient because the
phone-call confession was not credibly authenticated will be discussed in
conjunction with alleged errors in the admission of evidence. See infra n.3.
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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.
of discretion, not the underlying question of whether the verdict is against
the weight of the evidence. Id. Since the trial court observed the witnesses
consideration to the findings and reasons advance by the trial judge when
reviewing
the weight of the evidence. Id
granting or denying a new tri Id
course pursued represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality, prejudice,
bias or ill- Id. at 1055.
Trial Court Opinion, 11/27/13, at 29.
We find no abuse of discretion.
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admissibility of certain pieces of evidence. Our standard of review of the
ollows:
Admission of evidence is within the sound discretion of the
trial court, and this Court will find the trial court abused its
discretion only where it is revealed in the record that the court
did not apply the law in reaching its judgment or exercised
manifestly unreasonable judgment or judgment that is the result
of partiality, prejudice, bias, or ill will.
Commonwealth v. McKellick, 24 A.3d 982, 986 (Pa.Super. 2011).
conversation, allegedly between Appellant and Complainant, which contained
relies upon Commonwealth v. Carpenter, 372 A.2d 806, 808 (Pa. 1977),
in support of his claim that the telephone call was not properly
authenticated. He contends that since the Complainant had never met him
or heard his voice before the day at the laundromat, had never heard his
voice on the telephone, and did not hear his voice between the day of the
assault and the phone call, she could not have the requisite familiarity with
his voice to authenticate it. He directs our attention to Commonwealth v.
Woodbury
witness positively identified the voice she heard outside her door as the
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argues that evidence tantamount to a confession could not be harmless
error. See Arizona v. Fulminante, 499 U.S. 279 (U.S. 1991).
In Carpenter, supra before one
of two parties to a telephone conversation may testify as to the substance of
Pa.R.E. 901(b)(5) (rescinded and replaced, effective March 18, 2013)
voice at any time under circumstances that connect it with the alleged
testimony recognizing the voice, but it can also be established through
circumstantial evidence. In Carpenter, the defendant was charged with
third-
him to the
statements indicated that he was the person who attempted to kill the wife.
Id. at 808. Our Supreme Court summarized the testimony:
that some time later he
answered the telephone, which was ringing, whereupon he
.
He immediately advised Detective George Hedgeman of the
Hedgeman related that when he took the receiver and placed it
testimony, Hedgeman replied she was in the hospital and
requested the caller to identify himself, whereupon the caller
stated,
up.
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Id. (emphasis added). The Court upheld the admissibility of the telephone
and the contents of the communication as reported by the detective. Id.
Also at issue in Carpenter, supra, was another phone call allegedly
made by the defendant. A woman testified at trial that the defendant called
her and told her he killed the victim. Id. She testified that she knew
Carpenter, had conversed with him approximately five or six times in
person, and three to four times on the telephone. She stated that she was
able to recognize his voice. The Court concluded that this evidence
established the foundation requisite to permit testimony as to the
Id
question of admissibility, but rather were properly a matter for the jury to
consi Id.
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She continued that after she testified at the preliminary hearing, she
received a telephone call from a man with the same voice as her assailant.
testifying regarding a murder on Stanley Street.
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The trial court did not abuse its discretion in admitting this evidence.
her assailant. In addition, the caller identified himself by his first name,
Rashann, and the context of the conversation provided details indicating that
he was familiar with the circumstances of the crime. He offered a motive for
was not credible is not considered for the purpose of admissibility; it goes to
admissibility of testimonial evidence of the phone call lacks merit.
Next, Appellant alleges that the trial court abused its discretion in
permitting the Complainant and Detective Brian Peters to testify about an
unsolved murder that did not involve him. Appellant argued prior to trial
that the Stanley Street murder of Anwar Ashmore could not be tied to him.
The Commonwealth disagreed. It explained to the trial court prior to trial
-called
Stanley Street murder. Several months later, Raheem provided a statement
to homicide detectives in which he identified Ronald Thomas, (street name
son Khalil received a phone call on a cell phone. Khalil spoke first and then
handed the phone to the Complainant. She recognized the voice as
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apologized for trying to kill her, and in response to her inquiry as to why
someone would want to kill her, Appellant told her that Wink instigated it in
Stanley Street. Detective Peters further explained that Appellant, Wink,
known to frequent the 2600 block of Stanley Street.
Appellant concedes that evidence of other acts may be admissible to
show motive or history of the case, but only where it is more probative than
prejudicial. Pa.R.E. 404(b)(2) and (3) (rescinded and replaced effective
March 18, 2013). However, he alleges that the evidence of motive here was
not sufficiently connected to him to warrant admission of the facts
surrounding the Stanley Street killing of Ashmore. He maintains that the
only link was the erroneously admitted telephone call. Hence, he contends
that admission of this evidence was reversible error as the prejudicial impact
outweighed any probative value.
We have already concluded that there was no error in the admission of
the telephone call. We agree with the Commonwealth that the testimony
in attempting to kill Complainant. See Commonwealth v. Green, 76 A.3d
575 (Pa.Super. 2013). Bad acts evidence is admissible to show motive.
Pa.R.E. 404(b)(2). Furthermore, it is admissible as part of the res gestae of
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the case. Id
information to police ab
the Complainant as expressed in the telephone call. We do not find the
evidence to be unduly prejudicial as it did not implicate Appellant in the
Stanley Street murder. Furthermore, it did not suggest that he had a
propensity to murder people and act in conformity therewith on this
occasion, which would be a basis to preclude such evidence. Hence, no
relief is due.
Finally, Appellant contends that the trial court abused its discretion
when it failed to rule on all motions in limine prior to trial. He points to
motions shall be determined before trial. Trial shall be postponed by the
to timely and definitively rule on the admissibility of the telephone call and
evidence of the Stanley Street killing was prejudicial because he could not
defuse the impact of the phone call evidence in his opening statement, and
was forced to object repeatedly in front of the jury.
The Commonwealth points out that the trial court preliminarily ruled
that the telephone call and the associated other acts evidence were
admissible, but deferred its final ruling until after lunch. Appellant did not
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object. After lunch, the trial court advised the parties that it was inclined to
rule in accord with its preliminary ruling, but wanted additional time. No one
was to mention the phone call during opening statements. Again, Appellant
did not object.
ruling prior to trial, Appellant has waived this issue on appeal. Pa.R.A.P.
This Court noted in Commonwealth v. Metzer, 634 A.2d 228, 232 n.3
on in limine is generally made
before trial, the trial court may elect to rule upon the application at a later
ovide case
Complainant testified regarding the contents of the telephone call and the
situation with Holloman.
Furthermore, Appellant fails to establish prejudice. Since we have
previously concluded that the trial court did not abuse its discretion in
admitting this evidence, this is not a situation where the jury was exposed to
prejudicial inadmissible evidence. Moreover, as the Commonwealth correctly
points out, Appellant neglects to specify herein what his counsel would have
said in his opening statement to reduce the impact of this evidence.
Appellant merely avers generally that his counsel was deprived of the
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ci
T
Commonwealth v. Parker, 882 A.2d 488, 493 (Pa.Super. 2005). Since
him as the perpetrator/telephone caller, we cannot conceive of any reason
why his counsel would undercut that strategy by discussing the
circumstances surrounding the phone call that his client purportedly did not
make.
Nor does Appellant indicate why his counsel was forced to repeatedly
object to this evidence and how he was prejudiced in that regard. The
adverse ruling on the motion in limine was sufficient to preserve his
objection to the admissibility of this evidence for appellate review. The
unrelated to the motion in limine. For all of the aforementioned reasons,
Appellant is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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