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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
QUYDEEM HAWKINS,                           :            No. 538 EDA 2015
                                           :
                          Appellant        :


           Appeal from the Judgment of Sentence, February 13, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0002404-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MARCH 15, 2016

        Quydeem Hawkins appeals from the February 13, 2015 judgment of

sentence following his convictions of first-degree murder, aggravated

assault, violation of the Uniform Firearms Act (“VUFA”), and possession of an

instrument of crime (“PIC”).1 We affirm.

        The trial court provided the following facts:

                    The facts, when viewed in the light most
              favorable    to    the    Commonwealth       as    the
              verdict-winner,    show    that   at    approximately
              three o’clock in the afternoon of October 21, 2013,
              the defendant, Quydeem Hawkins, and another male
              snuck around the corner of Ditman and Granite
              Streets in Philadelphia and began firing at a group of
              males congregated around the steps of 5121 Ditman
              Street, resulting in the murder of Khaalid Boyd.
              Andre Richardson, Domonte Dark and Kelsey Dark,
              friends of the deceased witnessed the shooting.

1
    18 Pa.C.S.A. §§ 2502(a), 2702(a)(4), 6106(a)(1), and 907, respectively.
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           Each gave statements to the police following the
           shooting, which identified the defendant, ‘Quiz’ as
           the gunman.[2]

                 Andre Richardson testified that on October 21,
           2013, at approximately 3:00 in the afternoon he was
           outside of 5123 Ditman Street with several friends,
           including Khaalid Boyd and Kelsey Dark, when the
           defendant, wearing a red hoodie, and another
           unknown male ran up and started shooting at them.
           Mr. Richardson testified that he ran when the shots
           were fired, but returned later to see if Khaalid Boyd
           was alright. Richardson did not tell the officers at
           the scene what he had observed as it was his
           intention to exact retribution for the shooting
           himself.

                 Domonte Dark’s testimony established that he
           heard gunshots and that Quiz “had on a red hoody
           [sic] and he was shooting at us.” Mr. Dark further
           stated that “after they finished shooting they got
           back into the Honda Accord. Quiz pointed at me and
           skid off, then he hit a black Ford. I think he was
           coming after me.” Domonte believed that “It was
           over some he say/she say stuff over the block. The
           problem was between me and him. Someone told
           him that I was out to kill him.”

                 Kelsey Dark testified that he was outside of
           5121 Ditman Street on October 21, 2013, when he
           heard shots and ran. At the time he was living next
           door at 5123 Ditman Street.           Kelsey Dark was
           interviewed by the police regarding this incident on
           October 31, 2013, at which time he stated that his
           brother, Domonte Dark “got shot in the leg a couple
           days ago,” in response to whether there were any
           recent threats made towards him or his brother.
           Detective Charles Grebloski, who took the interview
           of Kelsey Dark, also testified at trial regarding Kelsey
           Dark’s statements.


2
  Appellant admitted to the police that his nickname is “Quiz.”       (Notes of
testimony, 2/11/15 at 135.)


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                   Kelly Myhausuk, a school psychologist who
            works at Hardy Middle School, located on Torresdale
            Avenue, near the 5100 block of Ditman Street
            testified as well. Ms. Myhausuk testified that on
            October 21, 2013, she left the school around
            3:30 p.m. driving her car at the intersection of
            Ditman and Granite Streets. While at the junction,
            she saw “two young African-American males coming
            down Granite, hugging the side of the building. “I
            observed them peeking around the corner looking up
            and down Ditman, which I kind of thought was
            suspicious.” “The male closest to me was in a red
            hoody [sic].” She observed the man in the red
            hoodie take out a gun, and then both men proceed
            into the middle of Ditman Street. Ms. Myhausuk
            testified that she had seen a crowd of people
            congregated outside of the third or fourth house
            from the corner.

                   When Ms. Myhausuk looked up after the
            shooting had stopped, she started to proceed
            through the intersection, but was “hit by a car
            traveling on Granite,” which pushed her car “up onto
            the sidewalk and [the] air bags deployed.” She
            described the car that hit her as a gold, older model
            sedan, and the passengers in that car to be the
            same men that had just fired the shots. She stated,
            “I believe the male in the red hoody [sic] was driving
            the car and the male with the white tee shirt was a
            passenger.”

                  There was further evidence provided at trial
            that a gold Honda was left at the scene, which was
            processed for evidence, and a video was recovered
            from a corner store that showed people fleeing the
            area.

Trial court opinion, 6/19/15 at 3-5 (citations omitted).

      The trial court also provided the following procedural history:

                 [Appellant] was arrested on November 17,
            2013 and charged with murder, attempted murder,
            conspiracy, firearms not be carried without a license,


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            recklessly endangering another person, aggravated
            assault, and possessing an instrument of crime.
            [Appellant] was held over for court on all charges
            after a preliminary hearing on March 4, 2014. A jury
            trial was held from February 9, 2015 through
            February 13, 2015, wherein [appellant] was
            convicted of the above-noted crimes. [Appellant]
            was sentenced to life without parole for first-degree
            murder and concurrent terms of confinement for the
            remaining charges. [Appellant] timely appealed.

Trial court opinion, 6/19/15 at 1-2.

      Appellant raises the following issues for our review:

            I.     Is the appellant entitled to an arrest of
                   judgment with respect to his convictions for
                   first degree murder, aggravated assault,
                   violation of the Uniform Firearms Act and
                   possessing instruments of crime and since the
                   evidence is insufficient to sustain the verdicts
                   of guilt as the Commonwealth failed to sustain
                   its burden of proving the appellant’s guilt
                   beyond a reasonable doubt?

            II.    Is the appellant entitled to a new trial as a
                   result of the trial court’s ruling that denied his
                   motion for a mistrial?

Appellant’s brief at 4.

      In his first issue on appeal, appellant avers that the Commonwealth

failed to produce sufficient evidence to prove his guilt beyond a reasonable

doubt of any of the offenses with which he was charged. When reviewing a

conviction for the sufficiency of the evidence, we are held to the following

standard:

                 In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict


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            winner, to see whether there is sufficient evidence to
            enable [the fact-finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to a
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, the Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014) (citations omitted).

                  Moreover, when applying the above test, the
            entire record must be evaluated and all evidence
            actually received must be considered. Finally, the
            finder of fact, while passing upon the credibility of
            the witnesses and the weight of the evidence
            produced, is free to believe all, part, or none of the
            evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011),

appeal dismissed as improvidently granted, 54 A.3d 22 (Pa. 2012)

(citations omitted).

      Specifically, appellant avers that the evidence presented by the

Commonwealth was insufficient to warrant his convictions of first-degree

murder, aggravated assault, VUFA, and PIC. We shall address each offense

individually.




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        First-degree murder is defined as follows:     “[a] criminal homicide

constitutes murder in the first degree when it is committed by an intentional

killing.”   18 Pa.C.S.A. § 2502(a).    Our supreme court has provided the

following relating to the sufficiency of the evidence in a first-degree murder

case:

             First-degree murder is an intentional killing, i.e., a
             “willful, deliberate and premeditated killing.”
             18 Pa.C.S. § 2502(a), (d).        In order to prove
             first-degree murder, the Commonwealth must
             establish that: (1) a human being was killed; (2) the
             accused caused the death; and (3) the accused
             acted with malice and the specific intent to kill.
             Commonwealth v. Staton, 38 A.3d 785, 789 (Pa.
             2012). The jury may infer the intent to kill based
             upon the defendant’s use of a deadly weapon on a
             vital part of the victim’s body. Commonwealth v.
             Johnson, 604 Pa. 176, 985 A.2d 915, 920 (2009)
             (citing Commonwealth v. Baumhammers, 599 Pa.
             1, 960 A.2d 59, 68 (2008)). In reviewing whether
             the evidence was sufficient to support a first-degree
             murder conviction or convictions, the entire trial
             record must be evaluated and all evidence
             considered. Id. In applying the above standards,
             we bear in mind that the Commonwealth may
             sustain its burden by means of wholly circumstantial
             evidence, and “the trier of fact, while passing upon
             the credibility of witnesses and the weight of the
             evidence, is free to believe all, part, or none of the
             evidence.” Commonwealth v. Cousar, 593 Pa.
             204, 928 A.2d 1025, 1032-1033 (2007).

Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013), cert. denied,

135 S.Ct. 154 (2014).

        Here, appellant avers that the Commonwealth has failed to present

sufficient evidence of the second and third elements to warrant a



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first-degree murder conviction.        Specifically, appellant claims that the

Commonwealth failed to establish beyond a reasonable doubt that appellant

was involved in the shooting, and even if the Commonwealth had met its

burden    in   proving   appellant’s    involvement   in   the   shooting,   the

Commonwealth failed to prove that appellant acted with the specific intent to

kill, as both the statute and our cases require. (See appellant’s brief at 16,

21.)

       We will first address the Commonwealth’s evidence that identified

appellant as the shooter.      The Commonwealth presented testimony from

Andre Richardson, in which Richardson identified appellant as the shooter.

(Notes of testimony, 2/10/15 at 63.) The Commonwealth also introduced a

statement that Domonte Dark gave to the Philadelphia Police, which also

indicated that appellant was the shooter. (Id. at 142.) As noted above, the

finder-of-fact is free to believe all, some, or none of the evidence presented;

and the fact-finder is free to make its own credibility determinations. See

Estepp, 17 A.3d at 943-944. Here, by convicting appellant, the jury found

Richardson’s testimony and Dark’s statement to the police to be credible.

There is support in the record for these factual findings and credibility

determinations; therefore, it is outside of our purview to substitute our own

judgment for that of the fact-finder.     As a result, the Commonwealth has

sufficiently proven beyond a reasonable doubt that appellant was identified

as the shooter in this case.



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      In   order      to   obtain   a   first-degree   murder   conviction,   the

Commonwealth must also sufficiently prove that appellant acted with malice

and the specific intent to kill. We have previously defined malice as follows:

            Malice is defined as: wickedness of disposition,
            hardness of heart, cruelty, recklessness of
            consequences, and a mind regardless of social duty,
            although a particular person may not be intended to
            be injured[.]    Malice may be found where the
            defendant consciously disregarded an unjustified and
            extremely high risk that his actions might cause
            serious bodily injury. Malice may be inferred by
            considering the totality of the circumstances.

Commonwealth v. Thompson, 106 A.3d 742, 757 (Pa.Super. 2014),

quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super. 2011)

(citation omitted).

      As the trial court noted, appellant acted with requisite malice and

specific intent to kill during the shooting.

                  In the present case, there were multiple
            witnesses who identified [appellant] as the shooter,
            and the facts laid out by the Commonwealth clearly
            show that [appellant’s] actions were intentional.
            [Appellant] skulked around the corner, pulled out his
            gun and started shooting at his prey across the
            street. [Appellant] deliberately stalked his victims in
            an attempt to ambush them.           [Appellant] then
            rushed the street, blasting away at unarmed and
            unaware victims. This was a premeditated attack
            with a deadly weapon.

Trial court opinion, 6/19/15 at 6. We therefore find that the record supports

the jury’s finding that appellant acted with the requisite malice and specific




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intent to kill and that the Commonwealth has sufficiently proven all three

elements to warrant a first-degree murder conviction.

      We next turn to appellant’s aggravated assault conviction. The statute

defines aggravated assault as follows:

            (a)   Offense defined.--A person         is   guilty   of
                  aggravated assault if he:

                  ....

                  (4)    attempts to cause or intentionally
                         or knowingly causes bodily injury
                         to another with a deadly weapon

18 Pa.C.S.A. § 2702(a)(4).

      Based upon the facts and circumstances noted above, where we

determined that the Commonwealth presented sufficient evidence to justify

a conviction of first-degree murder, we adopt the relevant portion of the trial

court’s opinion in which it found that the Commonwealth also produced

sufficient evidence to warrant an aggravated assault conviction.

                   Likewise, it is crystal clear that the
            Commonwealth presented sufficient evidence to
            sustain the charge of aggravated assault. The trial
            testimony incontrovertibly shows that Domonte Dark
            was the intended victim of this attack.          It was
            Mr. Dark that [appellant] intended to kill and at
            whom [appellant] was shooting. . . . The record
            clearly establishes that [appellant’s] conduct was
            intentional and by shooting at Domonte Dark, he is
            guilty of the crime of aggravated assault.
            Accordingly, this claim of insufficiency must fail.

Trial court opinion, 6/19/15 at 6-7.




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      Finally, appellant challenges the sufficiency of the evidence for his

convictions of a violation of the Uniform Firearms Act and possession of an

instrument of crime. Appellant’s entire argument for these two convictions

is as follows:

                  Finally, the Commonwealth failed to prove
            beyond a reasonable doubt that the appellant
            possessed or used a weapon to sustain the
            conviction for violating the Uniform Firearms Act and
            for possessing instruments of crime.

Appellant’s brief at 27. Bald statements of insufficiency in which no statute,

case law, or evidence is cited will be deemed waived for the purposes of

appeal. Pa.R.A.P. 2119(b-c). See also Commonwealth v. Janda, 14 A.3d

147, 164 (Pa.Super. 2011); Commonwealth v. Natividad, 938 A.2d 310,

340 (Pa. 2007).    Therefore, appellant’s claims regarding the sufficiency of

the evidence for his convictions of VUFA and PIC are waived.

      In his second issue, appellant avers that the trial court erred in failing

to declare a mistrial after Philadelphia Police Detective Edward Tolliver read

a portion of a statement he had taken from Andre Richardson that the trial

court had previously declared inadmissible. (See appellant’s brief at 28.)

            With regard to the denial of mistrials, the following
            standards govern our review:

                  In criminal trials, the declaration of a
                  mistrial serves to eliminate the negative
                  effect wrought upon a defendant when
                  prejudicial elements are injected into the
                  case or otherwise discovered at trial. By
                  nullifying the tainted process of the
                  former trial and allowing a new trial to


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                    convene, declaration of a mistrial serves
                    not only the defendant’s interests but,
                    equally important, the public’s interest in
                    fair trial designed to end in just
                    judgments. Accordingly, the trial court is
                    vested with discretion to grant a mistrial
                    whenever the alleged prejudicial event
                    may reasonably be said to deprive the
                    defendant of a fair and impartial trial. In
                    making its determination, the court must
                    discern     whether      misconduct      or
                    prejudicial error actually occurred, and if
                    so, . . . assess the degree of any
                    resulting prejudice. Our review of the
                    resulting    order   is   constrained    to
                    determining whether the court abused its
                    discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy

of a mistrial is an extreme remedy required ‘only when an incident is of such

a nature that its unavoidable effect is to deprive the appellant of a fair and

impartial tribunal.’”   Id. at 878 (citations omitted).    When the trial court

provides cautionary instructions to the jury in the event the defense raises a

motion for a mistrial, “[t]he law presumes that the jury will follow the

instructions of the court.” Commonwealth v. Brown, 786 A.2d 961, 971

(Pa. 2001) (citation omitted), cert. denied, 537 U.S. 1187 (2003).

         In the instant case, appellant requested a mistrial after the following

statement that Richardson gave to the police was read into the record at

trial:

              QUESTION: “Do you know why Quiz came around
              there shooting?”


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               ANSWER: “It was over some he say/she say stuff
               that was going back and forth. It had something to
               do with Kelsey Dark whose [sic] Domonte’s brother
               stealing some money or something when Quiz was in
               jail.

Notes of testimony, 2/11/15 at 69. After sustaining the defense’s objection

on the basis of hearsay, the trial court read the following curative instruction

to the jury:

               Ladies and gentlemen, I want you to ignore and
               strike from your memory the statement that was just
               made. It had to do with hearsay from somebody
               else, something he said/she said.      That is not
               admissible testimony. I will ask you not to consider
               it and strike it from your memory.

Id. at 73.3

      As noted above, the jury is presumed to have followed the trial court’s

curative instruction. As noted by the trial court, the record does not provide

any indication that the jury “did not follow the [trial] court’s instruction to

disregard the evidence. As such a mistrial was unnecessary.” (Trial court

opinion, 6/19/15 at 8.) We, therefore, find that the trial court did not abuse

its discretion by denying appellant’s motion for a mistrial.

      Judgment of sentence affirmed.




3
   Appellant appears to raise an objection as to the hearsay nature of the
statement in addition to the reference to appellant being incarcerated. The
trial court’s curative instruction to the jury satisfactorily addresses both.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2016




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