J-S91031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
ZHAIRE N. DEKEYSER                       :
                                         :
                   Appellant             :    No. 675 MDA 2016

           Appeal from the Judgment of Sentence March 22, 2016
              In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0004545-2014


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED FEBRUARY 14, 2017

      Appellant Zhaire N. Dekeyser appeals from the judgment of sentence

entered by the Court of Common Pleas of Dauphin County after a jury

convicted Appellant of first-degree murder, robbery (commits serious bodily

injury), and conspiracy to commit robbery.      Appellant claims the evidence

was insufficient to support his convictions, argues that the trial court abused

its discretion in various evidentiary rulings, and contends that the trial court

abused its discretion in imposing his sentence. We affirm.

      The trial court summarized the factual background of this case as

follows:

      The trial testimony revealed that [] Dailyl Jones [(“the victim”)],
      left his home on Green Street in Harrisburg after receiving a


* Former Justice specially assigned to the Superior Court.
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     phone call on the evening of December 12, 2013. [] Tasha
     Evans, his live-in girlfriend, [] knew that [the victim] had been
     selling “dippers” – a marijuana cigarette dipped in PCP. Ms.
     Evans assumed that the telephone call on the evening of [the
     victim’s] death had something to do with a drug sale. Ms. Evans
     received a call from her cousin at 1:37 a.m. [indicating] that
     something had happened to [the victim], and Ms. Evans went to
     the crime scene.

     Officer Robert Yost responded to [a report of a male who had
     been shot sitting in a car] on the evening of December 12 th just
     before 11:00 p.m. When Officer Yost arrived at the scene, he
     observed a black male lying in the driver’s seat with a good
     amount of blood coming out of the vehicle. The male had a
     prosthetic leg that was lying near his person, and he had a very
     light pulse.    Officer Yost immediately requested emergency
     services. Officer Yost observed a gold bullet casing in the empty
     front passenger seat. Next to the bullet casing was a clear
     sandwich bag with a white chunky substance in it, which he
     identified as crack cocaine. While Officer Yost was tending to the
     victim, he smelled a very “caustic odor,” which he identified as
     PCP. In the rear of the floorboard, he found a PCP cigarette, or
     “dipper.” Officer Yost also observed the prosthetic leg of the
     victim, which was lying on the floor of the car, which looked as
     though it had been removed from him, along with a white iPhone
     in the center console. After the ambulance came and left the
     scene with the victim, Officer Yost ran the license plate on the
     vehicle … which revealed that it belonged to [the victim]. It was
     ultimately determined that [the victim’s] cause of death [was] a
     gunshot wound to the back.

     [At trial,] Danzelle Chase was called as a witness. Mr. Chase
     testified that he knew [Appellant] through his little brother
     Randy. He also testified that he knew a man named George
     Brown through his brother … He knew [the victim] by his street
     name, which was “Half Nick.” He also knew [the victim] sold
     drugs. Mr. Chase testified that he was around on the night that
     [the victim] was killed at the corner of Fourth and Woodbine
     Streets.    Specifically, he said that he witnessed two men
     “tussling” with [the victim], and that someone had been
     screaming, “Shoot him, shoot him!” [The victim] was shot, and
     Mr. Chase ran away. Before he ran, Mr. Chase observed [the
     victim’s] prosthetic leg come off during the tussle, and saw
     something spill out of it. When asked if George Brown was one

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     of the people tussling with Half Nick, Mr. Chase replied yes, and
     that it was Mr. Brown who was yelling “shoot him.” Mr. Chase
     then testified that the person who fired the shot at [the victim]
     was not [Appellant].

     At this point in the proceedings, Mr. Chase was asked whether
     he testified under oath at the August 28th preliminary hearing.
     Mr. Chase responded that he did.         Mr. Chase’s preliminary
     hearing testimony included the following: “[F]rom across the
     street, it was these two gentlemen over here trying to rob Half
     Nick, and Half Nick started beating George Brown up, and then
     kept screaming … for Zha-Zha to shoot him, and then he shot
     him.” When asked at the preliminary hearing if “Zha-Zha” was
     referring to [Appellant]. Mr. Chase answered, “Yes.” At that
     point [at trial], Senior Deputy District Attorney John Baer
     [asked], “[is that] … obviously different than the testimony you
     provided here today?” Mr. Chase answered in the affirmative.

     Mr. Chase was then questioned about two different statements
     he made to police at the Harrisburg City Police Department. The
     first statement was taken on May 8 th of 2014 by Detective
     Iachini.    At that time, Mr. Chase was in state prison for
     something completely unrelated to the case at hand. Mr. Chase
     testified that he had a counselor in prison by the name of Miss
     Paul. Mr. Chase told Miss Paul that he needed to get something
     off his chest, which led to him giving a statement to Detective
     Iachini about “Half Nick’s” murder.      Mr. Chase said in his
     statement that he saw George Brown in a tussle trying to rob
     Half Nick, and that the other person with them was a guy from
     Philly that had the first name “Z.” However, Mr. Chase did not
     name him.

     A second statement was taken from Mr. Chase by Detective
     Iachini on June 20th, 2014, also at the Harrisburg Police
     Department. When asked at trial if the June 20th statement was
     voluntary, Mr. Chase said it was involuntary, [claiming] that he
     was threatened and forced to give it. Attorney Baer reminded
     Mr. Chase that at the conclusion of such statement, Detective
     Iachini asked Mr. Chase: “Did we do anything that forced you to
     come in here today and say, you know, to change your story and
     tell us what we want to hear?        Mr. Chase [stated] “No.”
     Detective Iachini [continued,] “[a]nd … what you are telling us
     then because that’s the truth and how it actually happened?”
     Mr. Chase [responded,] “Yes.” At trial, the Commonwealth

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     reminded Mr. Chase that … [in his June 20th statement, he
     identified Appellant as the shooter]. In recapping Mr. Chase’s
     testimony, the following exchange took place between Attorney
     Baer and Mr. Chase:

       Q: You, then in this June statement, Danzelle, you tell
       them you were trying to protect [Appellant] initially [in the
       May statement], and then you came clean and you named
       him in the second statement, right?

       A: Right.

       Q: That’s what you told Iachini?

       A: Right.

       Q: And then you went on to the preliminary hearing where
       you testified under oath to the exactly the same thing?

       A: Right.

     [N.T., 1/13/16, at 60-61.]

                                    ***
     Detective Iachini … testified about that phones that were found
     in [the victim’s] vehicle. One was a T-Mobile Sidekick, and the
     other phone was a white iPhone. After speaking with [the
     victim’s] girlfriend, Detective Iachini determined that the T-
     Mobile Sidekick was the one used by [the victim]. It was
     suspected by Detective Iachini that the iPhone belonged to
     someone who might have been in the car with [the victim]
     before he died. After law enforcement left the crime scene,
     Detective Iachini received information that George Brown had
     posted a photo of a white iPhone on Facebook, along with his
     phone number, saying that someone had stolen his phone, or
     that he had lost it. Detective Iachini called the phone number
     from the Facebook page from his personal cell phone; his
     number appeared on the white iPhone as it was ringing,
     indicating that it was indeed George Brown’s iPhone. After
     searching phone records, it was confirmed that the iPhone was
     registered to George Brown’s sister, with whom he was residing
     at the time of the murder.




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        The phone records also revealed that several calls were made
        between George Brown’s and [the victim’s] cell phone numbers,
        the last one between the two being made at 10:36 p.m. on the
        evening of the homicide initiating from Mr. Brown’s phone to
        [the victim’s phone].   The call to the police reporting the
        shooting came at 10:45 p.m.

Trial Court Opinion, 9/14/16, at 3-8.

        Appellant proceeded to a jury trial that took place on January 12-15,

2016.    At the conclusion of the trial, the jury convicted Appellant of first-

degree murder, robbery, and conspiracy to commit murder. On March 22,

2016, the trial court sentenced Appellant to life imprisonment without the

possibility of parole.    Appellant did not file a post-sentence motion, but

instead filed a notice of appeal on April 20, 2016. Appellant complied with

the trial court’s direction to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).

        Appellant raises the following issues for our review on appeal:

        1. Whether the evidence admitted at trial was sufficient as a
           matter of law to sustain Appellant’s convictions for first-
           degree homicide, robbery, and conspiracy?

        2. Whether the trial court abused its discretion by permitting the
           jury to hear evidence that George Brown was convicted of
           Dailyl Jones’ murder?

        3. Whether the trial court abused its discretion by permitting the
           Commonwealth to examine Danzelle Chase as a hostile
           witness?

        4. Whether the trial court committed reversible error by
           selectively publishing an impermissible portion of the court’s
           jury instructions to the jury during deliberations?

        5. Whether the trial court erred and abused its discretion by
           sentencing Appellant to life in prison without the possibility of

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         parole without properly considering the factors set forth in 18
         Pa.C.S. § 1102.1?

Appellant’s Brief, at 4 (renumbered for review).

      Appellant first challenges the sufficiency of the evidences supporting

his convictions for first-degree murder, robbery, and conspiracy to commit

robbery. Our standard of review for a sufficiency challenge is as follows:

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence admitted at trial, and all reasonable
      inferences drawn from that evidence, when viewed in the light
      most favorable to the Commonwealth as verdict winner, was
      sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Rayner, ---A.3d---, 2016 WL 7474406 (Pa. Super. filed

Dec. 29, 2016).

      To sustain a conviction for first-degree murder, the Commonwealth

must prove beyond a reasonable doubt that the defendant committed “an

intentional killing.” 18 Pa.C.S. § 2502(a). An intentional killing is defined as

“[k]illing by means of poison, or by lying in wait, or by any other kind of

willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d).

      To sustain a conviction for robbery under Section 3701(a)(1)(i), the

Commonwealth must prove beyond a reasonable doubt that the defendant

“in the course of committing a theft, … inflicts serious bodily injury upon

another.” 18 Pa.C.S. § 3701.




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      To sustain a conviction for criminal conspiracy, the Commonwealth

must prove beyond a reasonable doubt that “the defendant (1) entered into

an 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. Knox, 50 A.3d 732,

740 (Pa.Super. 2012) (citations omitted); 18 Pa.C.S. § 903(a)(1)–(2).

Further, this Court has provided that:

      The essence of a criminal conspiracy is a common
      understanding, no matter how it came into being, that a
      particular criminal objective be accomplished. Therefore, a
      conviction for conspiracy requires proof of the existence of a
      shared criminal intent. An explicit or formal agreement to
      commit crimes can seldom, if ever, be proved and it need not
      be, for proof of criminal partnership is almost invariably
      extracted from the circumstances that attend its activities. Thus,
      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.

Id.   We emphasize that “[w]here the existence of a conspiracy is

established, the law imposes upon a conspirator full responsibility for the

natural and probable consequences of acts committed by his fellow

conspirator or conspirators if such acts are done in pursuance of the

common design or purpose of the conspiracy.” Commonwealth v. Fisher,

622 Pa. 366, 377, 80 A.3d 1186, 1192 (2013).

      Appellant   does   not   challenge   any   particular   element   of   the

aforementioned crimes, but claims his conviction cannot stand on the

inconsistent statements of Danzelle Chase, who recanted his identification of


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Appellant as the shooter at trial.   Appellant characterizes Mr. Chase as an

inmate who lied in order to get out of jail and suggests that his testimony is

so unreliable that it is insufficient as a matter of law. We emphasize that

      questions regarding the reliability of the evidence received at
      trial [are] within the province of the finder-of-fact to resolve, and
      … [our courts] will not, on sufficiency review, disturb the finder-
      of-fact's resolution except in those exceptional instances …
      where the evidence is so patently unreliable that the jury was
      forced to engage in surmise and conjecture in arriving at a
      verdict based upon that evidence.

Commonwealth v. Brown, 617 Pa. 107, 150, 52 A.3d 1139, 1165 (2012)

(citing Commonwealth v. Karkaria, 533 Pa. 412, 419, 625 A.2d 1167,

1170 (Pa. 1993)).      Moreover, a conviction may rest entirely on prior

inconsistent statements of witnesses who testify at trial, and such

statements    “which   meet    the   requirements     for   admissibility     under

Pennsylvania law, must ... be considered by a reviewing court in the same

manner as any other type of validly admitted evidence when determining if

sufficient evidence exists to sustain a criminal conviction.” Brown, 52 A.3d

at 1171.

      Viewing the record in the light most favorable to the Commonwealth,

we reject Appellant’s assertion that this evidence is so patently unreliable

that the jury was forced to engage in surmise and conjecture in arriving at a

guilty verdict.   The prosecution presented a cohesive theory supported by

evidence suggesting that Appellant and Brown arranged a fake drug deal to

meet the victim and rob him. The Commonwealth presented phone records



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showing that Brown called the victim’s cell phone several times just minutes

before the murder. As the victim was a drug dealer, his girlfriend inferred

that the individuals calling the victim wanted to engage in a drug

transaction. The victim then met with Brown and Appellant, presumably to

sell them drugs. Mr. Chase, an eyewitness to this meeting, testified that he

observed Brown and Appellant, “tussling” with the victim, heard Brown yell

for Appellant to shoot the victim, and saw Appellant shoot the victim. Police

discovered drugs and Brown’s cell phone in the victim’s vehicle. Accordingly,

we find there was sufficient evidence to enable the jury to conclude beyond

a reasonable doubt that Appellant was guilty of first-degree murder,

robbery, and conspiracy to commit robbery.

      Second, Appellant claims the trial court abused its discretion in

allowing the jury to hear evidence that Brown was convicted of the victim’s

murder. Our standard of review for evidentiary matters is well-established:

      The admission of evidence is a matter vested within the sound
      discretion of the trial court, and such a decision shall be reversed
      only upon a showing that the trial court abused its discretion. In
      determining whether evidence should be admitted, the trial court
      must weigh the relevant and probative value of the evidence
      against the prejudicial impact of the evidence. Evidence is
      relevant if it logically tends to establish a material fact in the
      case or tends to support a reasonable inference regarding a
      material fact. Although a court may find that evidence is
      relevant, the court may nevertheless conclude that such
      evidence is inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)

(citation omitted).



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      While Appellant blames the trial court for allowing the jury to hear that

Brown was convicted of the victim’s murder, he fails to recognize that

defense counsel was the first to repeatedly refer to and elicit testimony

about this inadmissible evidence. In fact, on one occasion, defense counsel

actually asked Detective Iachini directly if Brown had been found responsible

for the victim’s death:

      [Defense counsel]: You initially charged two individuals[?]

      [Detective Iachini]: That’s correct.

      [Defense counsel]: You charged [Appellant] and George Brown?

      [Detective Iachini]: That’s correct.

      [Defense counsel]: George Brown was subsequently convicted
      for the homicide of [the victim], correct?

      [Prosecutor]:   Judge, I object to that.    I am not sure that’s
      relevant.

      [Trial court]: Are you going to go much farther with that?

      [Defense counsel]: That was all, sir.

      [Trial court]: Move on with your cross.

      [Defense counsel]: Can he answer, Your Honor?

      [Trial court]: Yes, you can answer.

      [Detective Iachini]: That’s correct.

N.T. Trial, 1/14/16, at 78-79.   Although the prosecutor tried to object to

prevent Detective Iachini from referring to Brown’s conviction, defense

counsel insisted being allowed to elicit this testimony. We fail to see how


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Appellant can claim the trial court committed reversible error when defense

counsel was responsible for the admission of the inadmissible evidence to

the jury. As a result, we find this claim to be meritless.

      In his third and fourth claims, Appellant argues that the trial court

“abused its discretion by permitting the Commonwealth to examine Danzelle

Chase as a hostile witness” and “committed reversible error by selectively

publishing an impermissible portion of the court’s jury instructions to the

jury during deliberations.”    Appellant’s Brief at 4.       However, Appellant

concedes that he did not raise these claims before the trial court by making

a timely objection. Our rules of appellate procedure provide that “[i]ssues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302(a). This Court has further provided:

      Issue preservation is foundational to proper appellate
      review....By requiring that an issue be considered waived if
      raised for the first time on appeal, our courts ensure that the
      trial court that initially hears a dispute has had an opportunity to
      consider the issue. This jurisprudential mandate is also grounded
      upon the principle that a trial court ... must be given the
      opportunity to correct its errors as early as possible. Related
      thereto, we have explained in detail the importance of this
      preservation requirement as it advances the orderly and efficient
      use of our judicial resources. Finally, concepts of fairness and
      expense to the parties are implicated as well.

Commonwealth v. Miller, 80 A.3d 806, 811 (Pa.Super. 2013) (quoting In

re F.C. III, 607 Pa. 45, 2 A.3d 1201, 1212 (2010) (citations omitted)). As

Appellant failed to raise these issues before the trial court, they are waived.




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      Lastly, Appellant claims the trial court abused its discretion by

sentencing Appellant to life in prison without parole without properly

considering the factors set forth in 18 Pa.C.S. § 1102.1, which instructs the

court to consider mitigating circumstances, including age-related factors, in

determining whether to impose a sentence of life imprisonment without

parole on a juvenile. Our legislature enacted Section 1102.1 in response to

the United States Supreme Court’s decision in Miller v. Alabama,

___U.S.___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which invalidated

mandatory life sentences for juvenile offenders.

      Our court has viewed a challenge to the trial court’s weighing of

sentencing factors, including mitigating factors listed in Miller, as a

challenge to the discretionary aspects of sentence.      Commonwealth v.

Seagraves, 103 A.3d 839, 841 (Pa.Super. 2014).              However, “issues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”    Commonwealth v. Cartrette, 83 A.3d

1030, 1042 (Pa.Super. 2013).       As Appellant did not raise this issue at

sentencing and did not file a post-sentence motion, this claim is also waived.

      For the foregoing reasons, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




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