J-S17018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RASHEED HALL

                         Appellant                 No. 2705 EDA 2015


      Appeal from the Judgment of Sentence entered August 21, 2015
           In the Court of Common Pleas of Philadelphia County
         Criminal Division at Nos: CP-51-CR-0004945-2014; and
                         CP-51-CR-0004943-2014


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                           FILED JUNE 30, 2017

      Appellant Rasheed Hall appeals from the August 21, 2015 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”). Upon review, we affirm.

      The facts and procedural history of this case are undisputed.       As

recounted by the trial court:

      On January 30, 2014, at 11:30 pm, Sharday Williams and her
      boyfriend Derrick Moye left Moye’s residence located on the 2600
      block of West Lehigh Avenue. After taking a few steps towards
      her car, co-Defendant Clinton Brown approached Williams, stole
      her wallet, and ran away. Observing the robbery of his girlfriend
      Williams, Moye chased after co-Defendant Brown. As Moye
      chased co-Defendant, [Appellant] Rasheed Hall emerged from
      the front of a nearby bar, struck Moye in the head with a firearm
      and then fired one shot into Moye’s chest. [Appellant] and co-
      Defendant then fled the scene together on foot, running in the
      same direction.

           Following the shooting, Williams and Moye went to Moye’s
      home, where his mother also resided. Moye’s mother dialed
      911, and police and an ambulance arrived shortly thereafter.
      Moye was taken to Temple University Hospital. Police officers
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     then took Williams to Northwest Detectives where she provided a
     description of the males.       Based upon “flash” information
     describing [Appellant] and co-Defendant, police officers stopped
     three males who were standing together:          [Appellant], co-
     Defendant, and another male.       An hour after the robbery and
     shooting, [o]fficers then brought Williams to the location where
     officers had the three individuals stopped, and Williams identified
     [Appellant] and co-Defendant as the two males who stole her
     wallet and shot Moye.

           Search incident to their arrests, police recovered two cell
     phones from [Appellant] and co-Defendant. Detectives obtained
     search warrants for the phones, however, they were unable to
     access [Appellant’s] phone.      After obtaining the cell phone
     number for co-Defendant’s phone, detectives then obtained
     search warrants for the subscriber information and call logs for
     that phone. Detectives determined that co-Defendant’s contacts
     included one with the name of “Sheed.” The number associated
     with “Sheed” was [Appellant’s] cell phone number. Detectives
     called the number for “Sheed,” and [Appellant’s] cell phone
     rang. Detectives reviewed the call logs and determined that
     [Appellant] and co-Defendant communicated multiple times
     during the period of January 29, 2014 to January 31, 2014,
     including two phone calls, roughly eight minutes apart, that
     occurred just after the robbery and shooting.

           Police obtained a warrant to search the property located at
     2531 West Oakdale Street, where [Appellant] resided. As part of
     the search, Detective Leonard Azzarano recovered five .32
     caliber rounds, one .40 caliber round, and fourteen .22 caliber
     rounds from a bowl in the kitchen. Detective Azzarano also
     recovered one black and one tan jacket from the dining room.
     Detective Kevin Sloan recovered numerous .45 caliber rounds
     from inside a suitcase in the middle bedroom of the second floor,
     along with a dry cleaning receipt, dated 1/28/14, with
     [Appellant’s] name on it and a description of the article of
     clothing cleaned as one jumpsuit. Shortly after the robbery,
     police recovered a silver .22 caliber revolver from the 2600 block
     of Sterner Street, which was approximately one block from the
     residence of co-Defendant Brown.

           Hyung Le, a forensic scientist with the Philadelphia Police
     Office of Forensic Science, testified that there was gunshot
     residue on the black Dickie jumpsuit worn by [Appellant] and
     recovered from him the night of his arrest, in particular, on the
     outside front and back of the right sleeve and cuff.

Trial Court Opinion, 6/15/16, at 1-3 (footnote omitted).

     On April 23, 2015, Appellant filed a motion to suppress, challenging his

on-scene identification by Sharday Williams.    The trial court conducted a

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hearing on the motion, at which Williams and Detective Wayne Brown

testified.

      Williams testified that on the night of the robbery and shooting,
      she and her boyfriend Moye exited his house. As they were
      walking toward her car, co-Defendant Brown came from her
      right, snatched her purse and ran off to the left. As Moye
      chased after co-Defendant, Williams observed [Appellant] step
      out from in front of the bar that was two houses down, run
      towards Moye and shoot him in the chest. Williams described
      [Appellant] as wearing a black hoodie, a black Dickie jacket and
      blue pants. Williams stated that from the time they exited the
      house until the shooting occurred was about two minutes.

      Detective Wayne Brown testified that he brought Williams to
      identify three males who had been stopped within an hour of
      when the shooting occurred. Detective Brown testified that the
      three males who were detained were standing outside the police
      car, that it was dark but the street lights were lit, that Williams
      was seated in the Detective’s car no more than 15’ to 20’ away
      with a clear view of the males, and that Williams positively
      identified [Appellant] and co-Defendant as the two individuals
      involved in the robbery and shooting. Detective Brown testified
      that Williams identified [Appellant] by his Dickie outfit or jacket.

Id. at 3-4.    At the conclusion of the hearing, Appellant withdrew his

suppression motion.    The case proceeded to a jury trial.       Following trial,

Appellant was convicted of aggravated assault, conspiracy to commit

aggravated assault, robbery, conspiracy to commit robbery, persons not to

possess firearms, carrying a firearm without a license, and possessing an

instrument of crime.   The trial court sentenced Appellant to an aggregate

term of 16½ to 33 years’ imprisonment.        Appellant did not file any post-

sentence motions. He timely appealed to this Court. Following Appellant’s

filing of a Pa.R.A.P. 1925(b) statement of errors complained of on appeal,

the trial court issued a Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant raises three issues for our review:


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       [I.] The trial court erred and abused its discretion when it denied
       [Appellant’s] motion to suppress the identification of eyewitness
       Sharday Williams.

       [II.] The trial court erred and abused its discretion when it
       denied [Appellant’s] motion to suppress all evidence obtained at
       the 2531 Oakdale Street property, as the search warrant was
       based on defective information, specifically, the defective
       identification of [Appellant].

       [III.] The verdict was against the weight of the evidence. The
       Commonwealth has shown that [Appellant] was wearing a black
       Dickie jumpsuit, which had one particle that could be identified
       as gunshot residue and that ammunition of multiple caliber were
       found in his residence that he shares with other family
       member[s].

Appellant’s Brief at 6 (unnecessary capitalization omitted).

       We need not address Appellant’s issues on appeal as they are waived.

Appellant’s first issue is waived because, at the conclusion of the

suppression hearing, he agreed with the trial court that the on-scene

eyewitness     identification    of   Appellant    by   Williams     was   “not   overly

suggestive.”     N.T. Suppression, 5/14/15 at 56-57.               Moreover, Appellant

withdrew the suppression motion.               Appellant’s second issue is similarly

waived. Id. at 58 (“At this point, I’m going to withdraw that motion.”). 1 We

also need not address the merits of Appellant’s third issue because he failed

to preserve it for our review. Specifically, our review of the record indicates

that Appellant failed to raise the weight of the evidence issue before the trial

court. “A weight of the evidence claim must be preserved either in a post-

sentence motion, by a written motion before sentencing, or orally prior to
____________________________________________


1
  Our review of the docket does not indicate that Appellant renewed his
suppression motion in the trial court.



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sentencing. Failure to properly preserve the claim will result in waiver, even

if the trial court addresses the issue in its opinion.”   Commonwealth v.

Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (citing Pa.R.Crim.P. 607) (other

citations omitted).   As Appellant did not raise this claim at sentencing or

preserve it through a timely filed post-sentence motion, the issue is waived

on appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2017




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