J-S15024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                    v.

ELIAJAH FLEMING,

                           Appellant                  No. 2836 EDA 2014


          Appeal from the Judgment of Sentence of May 15, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0001341-2013.


BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 07, 2016

      Appellant, Eliajah Fleming, appeals from a judgment of sentence

entered on May 15, 2014 in the Criminal Division of the Court of Common

Pleas of Philadelphia County. We affirm.

      The trial court thoroughly summarized the facts and procedural history

of this case as follows:

      Sixteen-year-old Yasin Harvey was shot and killed on May 2,
      2012 in a drive-by shooting in West Philadelphia. [Appellant]
      and co-defendant, Justin Brown (“Brown”), were arrested and
      charged with his murder. From May 7-15, 2014, [Appellant] and
      Brown were tried together before a jury.

      [At trial, Police Officer Kevin Dorin was the first witness called to
      testify on behalf of the Commonwealth]. Officer Dorin stated
      that on March 27, 2012, he responded to a report of gunshots on
      the 600 block of Edgemore Road. He observed six shell casings
      on the scene, contacted Southwest Detectives, and then waited
      for them to arrive.



*Retired Senior Judge assigned to the Superior Court.
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     Detective Vincent Parker testified next. He stated that on March
     27, 2012, he and his partner, Detective Ortiz, investigated the
     shooting on the 600 block of Edgemore Road. At the scene, he
     discovered six shell casings and two bullet projectiles. After
     speaking with two neighbors in the area, Detective Parker went
     to the hospital to speak with victim Jamal Payne (“Payne”);
     however, he was unable to be interviewed as he was undergoing
     treatment. The next day, Detective Parker met with Payne, who
     refused to identify the shooter. On April 26, 2012, Detective
     Parker interviewed [Appellant] at Southwest Detectives and
     obtained a statement from him regarding Payne’s shooting.
     [Appellant] told him that on March 27, 2012, he was kidnapped
     by three armed men, who forced him into a car. The three men
     beat him and stole his two cell phones and $90[.00] in cash,
     before driving him back to his home and demanding that he get
     more money for them. [Appellant] told Detective Parker that he
     went into his house, retrieved a firearm, and shot one of his
     abductors, later identified as Payne. Detective Parker testified
     that [Appellant] reviewed the written statement, initialed each
     page, and signed at the bottom.

     Samir Green (“Green”) testified next. He stated that on May 2,
     2012, he was 15 years old and was spending time with his friend
     Yasin Harvey (“Harvey”). He and Harvey, along with two other
     friends, were standing outside of a store at the corner of 62 nd
     and Callowhill, when a dark Pontiac with tinted windows pulled
     up and someone began shooting at them. Green testified that
     he saw someone leaning out [of] the front passenger window,
     firing a gun with his arm fully extended. He described the
     shooter as “[b]rown skinned, caramel” but did not get a good
     look at the shooter’s face. Green stated that when he realized
     bullets were flying, he ran and ducked behind parked cars. After
     the Pontiac drove away, Green came out of hiding and saw
     Harvey lying in the street, trying to get up. Green ran inside a
     nearby house to hide in case the shooter returned. He testified
     that he looked out the window and saw people running to help
     Harvey so he and his friends returned outside and waited until
     Harvey was transported to the hospital. Green gave a statement
     to detectives later that same day.

     Police Officer   Jasmin   Torres  testified  next   for   the
     Commonwealth. Officer Torres stated that on May 2, 2012, she
     and her partner, Officer Benson, heard gunshots near police
     headquarters. She then received a radio call, indicating that

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     someone had been shot near 62nd and Callowhill. When she
     arrived on the scene, she saw Harvey lying on the ground
     between two vehicles, covered in blood. Officer Torres put him
     in the backseat of her police vehicle and drove him to the
     emergency room. She remained at the hospital until Harvey was
     pronounced dead by medical personnel.

     Next, Police Officer Gregory Yatcilla of the Crime Scene Unit
     testified.  He stated that he responded to the report of a
     shooting at 62nd and Callowhill Streets. He took photographs of
     the scene and collected evidence, including blood samples, two
     bullets specimens and seven fired shell casings.

     Police Officer John Cannon testified next as an expert in the
     identification and testing of firearms and ammunition. He stated
     that he analyzed the fired cartridge cases and two bullets
     recovered from the scene of the shooting [at 62nd and Callowhill
     Streets] and cross-checked them against ballistics evidence
     recovered from the March 27, 2012 shooting of Jamal Payne on
     Edgemore Road. He determined that the fired cartridge cases all
     came from the same firearm.

     Farid Brown (“Farid”) testified next for the Commonwealth. He
     denied that he was in the area of 62nd and Callowhill Streets on
     May 2, 2012 when Yasin Harvey was shot. He also denied giving
     a statement to Homicide Detective Tracy Byard on May 10,
     2012, wherein he admitted being present at the scene of
     Harvey’s death. In this written statement, which he initialed and
     signed, Farid told detectives that he knew [Appellant] and Brown
     “from playing basketball,” and that [Appellant] drove a dark
     green Pontiac Grand Prix. Farid further told detectives that on
     May 2, 2012 he was at the store on the corner of 62 nd and
     Callowhill and heard gunshots.

     Next, Police Sergeant Bob Wilkins testified. He stated that he
     met with Brown at police headquarters on August 25, 2012 and
     questioned him regarding the murder of Yasin Harvey. In his
     statement, Brown told Sergeant Wilkins that Kareem Terry,
     a/k/a “Reem,” shot Harvey[. In addition, Brown] relayed the
     following version of events: Brown, another man and Kareem
     were driving around in a car together, smoking weed and on
     their way to meet some girls. As they drove by the corner of
     Felton and Callowhill, the driver stopped and Kareem rolled down
     the window and started shooting from the back seat, trying to

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     hit Farid before he entered the corner store.        This was a
     retaliatory response to Farid’s murder of Stephen Hamilton,
     Brown’s best friend. When Kareem was done shooting, the
     driver of the vehicle then sped away. Brown asked, “What the
     fuck is wrong with you all?” and then jumped out of the front
     passenger seat at the next red light. He said [he] never saw the
     driver or Kareem Terry again. Sergeant Wilkins testified that
     Brown told him he hadn’t come forward with this information
     sooner because he was scared and knew he had outstanding
     warrants on unrelated matters.        Wilkins showed Brown a
     photograph of Yasin Harvey; however, Brown told him that he
     did not know Harvey and was unable to identify him from the
     photograph.

     Gary L. Collins, M.D., Deputy Chief Medical Examiner, testified as
     an expert in forensic pathology. He testified that he examined
     Yasin Harvey’s body and determined that he died as a result of
     multiple gunshot wounds: one to his head, two to his chest, and
     one to his arm. The gunshots to the chest would have been fatal
     to Harvey even if he had not been fatally shot in the head.

     Next, Police Officer Ronald Burgess testified for the
     Commonwealth. He stated that on May 9, 2012, he spotted
     [Appellant] driving in a dark green Pontiac vehicle with heavily
     tinted windows that matched the description of the car involved
     in Harvey’s shooting. He stopped the vehicle and discovered
     that Kareem Terry, the car’s owner, was sitting in the front
     passenger seat. Both [Appellant] and Terry were taken into
     custody. Burgess testified that he knew the area of 62 nd and
     Callowhill very well, and knew Jamal Payne to frequent this area.

     Detective Tracy Byard testified next. He stated that he executed
     a search warrant at [Appellant’s] house and recovered several
     pieces of mail as well as a funeral card for the services of
     Stephan C. Hamilton. Byard further testified that during the
     course of the investigation, he came into contact with Brown,
     and noted that Brown had the numbers “six four” surrounded by
     skulls tattooed on his arms, as well as the word “Callowhill”
     tattooed across his back. Byard stated that he and his fellow
     police officers searched for Brown from May 8, 2012 until August
     25, 2012, when he was finally apprehended.

     Kareem Terry (“Terry”) testified next for the Commonwealth.
     Terry stated that on May 2, 2012, [Appellant] (also known as

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     “Lihj”) and Brown (also known as “Dot”) picked him up at his
     home. Terry testified that [Appellant] was driving the car,
     Brown was in the front passenger seat, and he was in the
     backseat alone. As they drove down 62nd Street, [Appellant]
     spotted a group of males on the corner. He circled the block and
     then pointed out the males as members of “Deuce.” Brown
     began firing a gun at them. Terry testified that Brown shot
     approximately six times. [Appellant] drove away, and turned
     down a small block between Callowhill and Vine Streets. Terry
     testified that his ears were ringing from the gunshots so he
     asked to be let out of the vehicle. He then walked back to his
     house at Callowhill and Simpson Streets. Three days later, on
     May 5, 2012, Terry was taken into police custody. He testified
     that he told the police that the car [Appellant] was driving was
     registered [in Terry’s name] but that it actually belonged to
     [Appellant]. [Appellant] paid for the vehicle but gave Terry a
     couple hundred dollars to put the car’s paperwork in Terry’s
     name because [Appellant] did not have a valid driver’s license.
     Terry then reviewed the statement he gave police on May 5,
     2012. In this statement, he described the shooting as follows:

       Like I said, it was Dot who shot at the crowd and the boy
       must have been in the crowd. I was in the back seat of the
       car when Dot lit up the crowd. The car is in my name but
       Lihj gave me some money to put the car in my name. I
       ride around with them once in a while but the car is in my
       name for the papers only. Lihj always drives that car.

       The night the boy got killed I was riding with Lihj and Dot.
       Dot was in the front on the passenger side. Lihj was
       driving. Lihj drove by Sixty-Second Street and there was a
       crowd on the corner. Lihj drove by it and then went around
       the corner and started coming up on the crowd again. Lihj
       told Dot, yo, there goes them Deuce niggas right there,
       shoot them. Dot then pulled a gun from I think from under
       the seat or the side well on the door cause I seen him reach
       down. I didn’t know there was a gun in the car. I just seen
       Dot reach down, then come up with the gun and he started
       lighting up the crowd that was there.

       Then Lihj drove off. I was like what the fuck. Lihj got to
       like Sixty-Third and Vine and I was yelling, yo, let me the
       fuck out. I didn’t want no part of anything. I got out of the
       car and Lihj and Dot drove off. You see, Sixty-Fourth and

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       Callowhill been going through it with anybody on Callowhill
       that is on the other side of Sixty-Third Street. I just walked
       off and went home.

       The next day I was around on Sixty-Fourth and Dot and Lihj
       were talking about it and word was out one of the boys in
       the crowd that got hit died. Lihj was saying how he still had
       the gun in his car. That’s when Dot told Lihj, yo, you got to
       get rid of that gun. Lihj said he would get rid of it but I
       don’t know what he did with it.

     Terry testified that [Appellant] was the leader of the 64 [th] and
     Callowhill gang and that he “has everyone else do his dirty
     work.” He further testified that [Appellant] previously had been
     kidnapped by members of Deuce and that there had been a lot
     of “back and forth” after that between the two gangs. Terry
     stated that he was currently incarcerated, awaiting trial for
     attempted murder, that he had immunity with respect to his
     involvement in the murder of Yasin Harvey, but he did not have
     any deals with the Commonwealth that would benefit him in his
     ongoing attempted murder case. He stated that [Appellant]
     called him at home from prison several times after his arrest. A
     redacted audio recording of these phone calls was then played
     for the jury. Terry testified that during the phone conversations,
     [Appellant] instructed Terry not to point the finger at him and
     told him not to tell the police that [Appellant] initiated
     everything. Terry assured [Appellant] that he was not going to
     testify in court; however, he appeared at the preliminary hearing
     and identified [Appellant] as the driver of the vehicle.

     At the conclusion of Terry’s testimony, counsel [for the parties]
     entered evidence [into the record] by way of stipulation[.]
     Counsel first stipulated to a certificate of non-licensure, stating
     that [Appellant] was not licensed to carry a firearm. Counsel
     then stipulated to another certificate of non-licensure, indicating
     that Brown was not licensed to carry a firearm.                The
     Commonwealth moved its exhibits into evidence and rested.
     [Appellant’s] counsel moved for a judgment of acquittal. This
     motion was denied and the defense rested. The jury found
     [Appellant] guilty of first-degree murder, criminal conspiracy,
     and carrying a firearm without a license.

     [] On May 15, 2014, th[e trial c]ourt sentenced [Appellant] to
     the mandatory sentence of life imprisonment without the

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        possibility of parole. [Appellant] was further sentenced to 10 to
        20 years state incarceration on the conspiracy charge, and 3½ to
        7 years state incarceration [for carrying a firearm without a
        license], to run concurrently with his term of life imprisonment.

        [Appellant] filed a post-sentence motion on May 23, 2014. This
        motion was denied by operation of law on September 24, 2014.
        [Appellant filed a notice of appeal on October 3, 2014.] On
        October 14, 2014, [the trial c]ourt order[ed Appellant to] file a
        [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal
        [p]ursuant to Pa.R.A.P. 1925(b). [A concise statement was filed
        on behalf of Appellant on February 12, 2015, following the
        appointment of appellate counsel.] [On appeal, Appellant raises
        the following issues for appellate review:        (1) whether the
        evidence was sufficient for the jury to find Appellant guilty of all
        charges; (2) whether the verdict was against the weight of the
        evidence; (3) whether the trial court properly denied Appellant’s
        request for a mistrial; and, (4) whether the trial court improperly
        prohibited defense counsel from engaging in full and fair
        cross-examination and impeachment of Commonwealth witness
        Kareem Terry.]


Trial Court Opinion, 5/27/15, at 1-9 (record citations omitted).

        We have carefully reviewed the certified record, the submissions of the

parties, and the thorough opinion issued by the trial court. Based upon our

review, we are persuaded that the trial court adequately and accurately

assessed each of the claims raised on appeal. We therefore concur with the

trial   court’s   determinations   that:   (1)   sufficient   evidence   supported

Appellant’s convictions for first-degree murder, conspiracy, and carrying a

firearm without a license; (2) the verdict was not against the weight of the

evidence; (3) the court did not abuse its discretion in denying Appellant’s

request for a mistrial given the minimal prejudice that resulted from the

contested testimony regarding Appellant’s post-arrest silence, the court’s



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decision to strike the testimony from the record, the curative instruction

issued to the jury, and the overwhelming quantity of inculpatory evidence

that supported Appellant’s guilt; and, (4) the trial court did not abuse its

discretion in prohibiting Appellant’s trial counsel from cross-examining Terry

about collateral matters unrelated to his testimony in the present case. See

Trial Court Opinion, 5/27/15, at 17-30 and 33-35. Since the record supports

the trial court’s findings and since the court’s conclusions are consistent with

applicable Pennsylvania law, we adopt the court’s assessments as our own.

We direct the parties to include a copy of the trial court’s opinion with all

future filings relating to the disposition of this appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2016




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