Com. v. Smith, R.

J. S23042/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAHEEM SMITH, : No. 2322 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered June 22, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003332-2017
BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: October 1, 2020
Raheem Smith appeals from the June 22, 2018 judgment of sentence
entered by the Court of Common Pleas of Philadelphia County following his
conviction of two counts of robbery—threat of immediate serious injury and
one count each of conspiracy to commit robbery, possession of firearms by a
prohibited person, firearms not to be carried without a license, and carrying
firearms in public in Philadelphia.1 The trial court sentenced appellant to an
aggregate term of 12-24 years’ imprisonment, to be followed by 18 months’
probation. After careful review, we affirm.
The trial court provided the following factual history:
On August 21, 2016, at approximately 11:45 p.m.,
James DeSimone and Gary Moore[] went to
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a), 6105(a)(1), 6106(a)(1), and 6108,
respectively.
J. S23042/20
Club Onyx, a nightclub in South Philadelphia. As they
got out of their car and walked toward the club
entrance, appellant approached them and asked for a
light. DeSimone and Moore told [him] that they didn’t
have one and turned to walk away. At that point, two
other men approached DeSimone and Moore with
guns drawn. Appellant, who was now behind
DeSimone and Moore, put a gun to DeSimone’s back,
placed a hand on his shoulder and told the other men
“they’re not going anywhere.” Appellant and his
cohorts took DeSimone’s belt, sneakers, wallet and
money and took Moore’s wallet and jewelry.
Following the robbery, the assailants got into a silver
Hyundai and drove away. DeSimone and Moore ran
back to their car and followed the Hyundai onto I-95
South. DeSimone called 911 as he gave chase.
Eventually[,] police vehicles picked up the chase as
the robbers sped south on I-95.
The police pursued appellant and his friends to
Wilmington[,] Delaware, where the Hyundai crashed
into a parked car and came to a stop. Appellant’s
friends fled on foot. Appellant, however, was trapped
inside the front passenger seat of the Hyundai.
Members of the Wilmington Police Department and
the Pennsylvania State Police arrested appellant and
recovered the victims’ property from inside the car.
They also found a gun under the passenger side of the
car near appellant. DeSimone and Moore arrived on
the crash scene as appellant was being transported to
the hospital. They positively identified appellant as
one of the robbers and also identified their stolen
property.
Appellant, who lived in Delaware at the time of the
incident, testified that he and his friends, [Javon
Jackson and Kenny2], went to Club Onyx on the night
in question. Appellant stated that he saw DeSimone
and Moore in the parking lot and asked them for a
light. Appellant claimed that he did not know that his
friends were armed and had no idea that they
2 Kenny’s last name does not appear in the certified record.
-2-
J. S23042/20
intended to rob the complainants. Appellant further
testified that he wouldn’t have gotten into the car with
[Jackson] and Kenny if he had known that they were
armed. Appellant said that he was shocked,
disappointed and scared. Appellant asked [Jackson]
to take him home and claimed that he was unaware
that they were being chased until he saw police sirens.
In addition to vigorous cross-examination, the
Commonwealth attempted to impeach appellant by
introducing, via stipulation, that he had been
convicted of burglary, graded as a felony of the
3rd degree, in Wilmington, Delaware in 2016.
Trial court opinion, 7/16/19 at 1-3 (citations to the record omitted).
A jury convicted appellant of the aforementioned crimes on April 25,
2018. The trial court imposed sentence on June 22, 2018. Appellant filed a
motion for reconsideration of sentence which was denied by the trial court on
July 5, 2018. Appellant filed a timely notice of appeal on August 6, 2018.3
The trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) and appellant timely
complied. The trial court subsequently filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Did not the trial court abuse its discretion in
permitting the Commonwealth to put into
evidence that [appellant] had a conviction for
[b]urglary in the third degree, a class F felony,
in the [S]tate of Delaware when [the]
Commonwealth provided no official account of
the crime [appellant] had previously been found
3August 4, 2018, fell on a Saturday. Accordingly, appellant’s notice of appeal
was timely filed. See 1 Pa.C.S.A. § 1908.
-3-
J. S23042/20
guilty of and provided no evidence that the
crime included actions that would entail
dishonesty thereby allowing the Commonwealth
to impeach [appellant’s] honesty[?]
2. Did not the [trial c]ourt err in giving a flight
instruction to the jury, where there was no
sufficient basis to give that instruction as there
was no evidence [appellant] fled from police,
but rather was an involuntary passenger in a
vehicle[?]
Appellant’s brief at 7.
In his first issue, appellant contends that the trial court erred when it
permitted the Commonwealth to introduce evidence of appellant’s conviction
of burglary in the State of Delaware as a means of impeaching appellant’s
honesty without an analysis of the actual crime committed. (Id. at 11-14.)
Appellate reviews of a trial court’s evidentiary decisions are governed
by the following standard of review:
The admissibility of evidence is solely within the
discretion of the trial court and will be reversed only if
the trial court has abused its discretion. An abuse of
discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or
the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence of record.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa.Super. 2013), appeal
denied, 87 A.3d 319 (Pa. 2014), quoting Commonwealth v. Hanford, 937
A.2d 1094, 1098 (Pa.Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008).
The Pennsylvania Rules of Evidence mandate that evidence of a
conviction of a crime involving dishonesty or a false statement be admitted
-4-
J. S23042/20
“[f]or the purpose of attacking the credibility of any witness[.]”
Pa.R.E. 609(a). Evidence of a criminal conviction, however, is generally not
admissible “if more than 10 years have passed since the witness’s conviction
or release from confinement for it, whichever is later.” Pa.R.E. 609(b).
Here, appellant’s 2016 conviction of burglary from the State of Delaware
is at issue. (See notes of testimony, 4/23/18 at 75.) Pennsylvania courts
have recognized burglary as a crime involving dishonesty or false statement.
Commonwealth v. Cole, 227 A.3d 336, 340 (Pa.Super. 2020), citing
Commonwealth v. LaMassa, 532 A.2d 450, 452 (Pa.Super. 1987). Our
Crimes Code defines burglary as follows:
(a) Offense defined.--A person commits the
offense of burglary if, with the intent to commit
a crime therein, the person:
(1)(i) enters a building or
occupied structure, or
separately secured or
occupied portion thereof,
that is adapted for
overnight accommodations
in which at the time of the
offense any person present
and the person commits,
attempts or threatens to
commit a bodily injury
crime therein;
(ii) enters a building or
occupied structure, or
separately secured or
occupied portion thereof
that is adapted for
overnight accommodations
in which at the time of the
-5-
J. S23042/20
offense any person is
present;
(2) enters a building or occupied
structure, or separately secured or
occupied portion thereof that is
adapted for overnight
accommodations in which at the
time of the offense no person is
present;
(3) enters a building or occupied
structure, or separately secured or
occupied portion thereof that is not
adapted for overnight
accommodations in which at the
time of the offense any person is
present; or
(4) enters a building or occupied
structure, or separately secured or
occupied portion thereof that is not
adapted for overnight
accommodations in which at the
time of the offense no person is
present.
18 Pa.C.S.A. § 3502(a). By comparison, the State of Delaware defines
third-degree burglary—the conviction at issue here—as follows: “A person is
guilty of burglary in the third degree when the person knowingly enters or
remains unlawfully in a building with intent to commit a crime therein.”
11 Del.C. § 824.
Furthermore, in Commonwealth v. Davis, 17 A.3d 390 (Pa.Super.
2011), appeal denied, 29 A.3d 371 (Pa. 2011), this court reaffirmed that
Pennsylvania courts recognize criminal trespass as a crimen falsi offense.
Specifically, this court noted the following:
-6-
J. S23042/20
The crime of criminal trespass involves either entering
or remaining in a place, while knowing that one is not
licensed or privileged to do so. Because the offense
involves the commission of an act that the offender
knows he or she is not licensed or privileged to do, it
reflects adversely on the offender’s honesty.
Moreover, we note that criminal trespass is similar to
burglary, which this Commonwealth has long
recognized as a crime that involves dishonesty.
Accordingly, we conclude that criminal trespass is an
offense in the nature of crimen falsi . . . .
Id. at 397-398, quoting Commonwealth v. Walker, 559 A.2d 579, 582-583
(Pa.Super. 1989) (emphasis in original); see also 18 Pa.C.S.A. § 3503(a).
The trial court determined that the Pennsylvania burglary statute and
the Delaware third-degree burglary statute are sufficiently similar. (Notes of
testimony, 4/23/18 at 87.) Based on our review of the relevant statutes in
both jurisdictions and in light of this court’s decisions in Walker and Davis,
we discern no abuse of discretion on the part of the trial court. Accordingly,
appellant’s first issue is without merit.
In his second issue, appellant avers that the trial court erred when it
provided the jury with a flight instruction when “there was no sufficient basis
to give that instruction as there was no evidence [appellant] fled from [the]
police, but rather was an involuntary passenger in a vehicle.” (Appellant’s
brief at 15.)
When reviewing a trial court’s instructions to the jury, we are governed
by the following standard:
[W]hen evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole, and
-7-
J. S23042/20
not simply isolated portions, to determine if the
instructions were improper. We further note that, it
is an unquestionable maxim of law in this
Commonwealth that a 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.
Only where there is an abuse of discretion or an
inaccurate statement of the law is there reversible
error.
Commonwealth v. Roane, 142 A.3d 79, 95 (Pa.Super. 2016), quoting
Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa.Super. 2007) (citation
omitted).
When addressing jury instructions pertaining to flight, we have held
that:
[a] flight instruction is proper when:
a person has reason to know he is wanted
in connection with a crime, and proceeds
to flee or conceal himself from the law
enforcement authorities, such evasive
conduct is evidence of guilt and may form
a basis, in connection with other proof,
from which guilt may be inferred.
Commonwealth v. Harvey, [] 526 A.2d 330, 334
([Pa.] 1987). “A defendant's knowledge may be
inferred from the circumstances attendant [to] his
flight.” Commonwealth v. Johnson, [] 838 A.2d
663, 681 ([Pa.] 2003).
Commonwealth v. Thoeun Tha, 64 A.3d 704, 714 (Pa.Super. 2013).
Here, as noted above, appellant contends that he was an “involuntary
passenger” in a vehicle with his friends, Javon Jackson and Kenny.
(Appellant’s brief at 15.) As noted by the Commonwealth, appellant’s
-8-
J. S23042/20
argument is belied by his own trial testimony. (See Commonwealth’s brief
at 12.) Indeed, during direct examination, appellant testified that after the
robbery, he got into a car with Jackson and Kenny. (Notes of testimony,
4/23/18 at 109.) During cross-examination, appellant admitted that he could
have walked away both while the robbery was in progress and after the
robbery was complete. (Id. at 134.) Appellant also testified that he did not
call 911 while the robbery was in progress. (Id. at 133.)
Based on our review of the record, we find that the Commonwealth
presented sufficient evidence that appellant either knew or had reason to
know that he would be wanted by the police in connection with the robbery at
issue in the instant case. Accordingly, the trial court did not abuse its
discretion when it provided the jury with a flight instruction. Therefore,
appellant’s second issue is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/20
-9-