J-S20038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MONROE YATES                               :
                                               :   No. 2936 EDA 2015
                       Appellant

              Appeal from the Judgment of Sentence July 22, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014350-2013


BEFORE:      BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 06, 2017

        Monroe Yates appeals from the judgment of sentence imposed on July

22, 2015, in the Court of Common Pleas of Philadelphia County following his

conviction by jury on charges of attempted murder, conspiracy to commit

murder, and various weapons offenses.1 He received an aggregate sentence

20 to 40 years’ incarceration. In this timely appeal, Yates claims the evidence

was insufficient to support the verdict, the verdict was against the weight of

the evidence, the trial court erroneously charged the jury regarding

identification, and the trial court erroneously announced a stipulation to the

jury. After a thorough review of the submissions by the parties, relevant law,

and the certified record, we affirm.


____________________________________________


1   18 Pa.C.S. §§ 901(a), 1102(c), 6106(a)(1) and 6108.
J-S20038-17



       We adopt the factual summary of this matter from the trial court

opinion:

             On June 17, 2013, around nine o’clock in the evening,
       Lakeisha Jessie was with her sons Sahih Johnson and Jahih Yates
       in North Philadelphia. Sahih asked his mother if he could spend
       the night at a friend’s house. When Lakeisha said no, Sahih called
       her a “bitch.” After this disagreement, Lakeisha’s nephew Robert
       Jackson walked by, and Lakeisha asked him to “beat up” Sahih for
       disrespecting her. Robert continued the physical confrontation
       with Sahih until Lakeisha told him to stop.

             Later that evening, Robert and Sahih encountered one
       another and began fighting again. Lakeisha then noticed that her
       son Jahih’s father, [Monroe Yates (hereinafter, Yates)], was
       arguing with Robert as well. At this time Lakeisha called Robert’s
       mother, her sister Kimberly Jessie, to pick up her son. When
       Lakeisha told [Yates] to leave Robert alone, he walked away
       towards Franklin Street.

             Kimberly Jessie was with friends nearby on 10th Street when
       Lakeisha called her. As she walked down 9th Street near Pike
       Street to find her son Robert, Kimberly passed [Yates] and
       [Biggs.2] She stopped to speak to [Yates] about the incident.
       While they were speaking, Kimberly’s sons Robert, Raheim and
       Tyreek approached them. Raheim said, “Nobody is going to do
       anything. Nobody is going to touch my family.” This made [Yates]
       and [Biggs] angry, and Kimberly walked them across the street.
       [Yates] and [Biggs] left together in a white vehicle.

             At approximately 10:30 that evening, Officers Dayton
       Bennett and Joseph Marion responded to a report of shots fired in
       the area of 9th and Pike Streets. The initial call reported five or
       six shots fired. Upon arrival, the officers found a group of around
       20 people gathered in the area. They also saw Kimberly Jessie
       lying on the curb between Percy and Delhi Streets. She had been
       shot and was in distress, screaming “They tried to shoot my son.
       They tried to shoot my son. The mother f-ers tried to shoot my
       son.” Kimberly testified that she was shot in the right thigh, and

____________________________________________


2Mark Biggs, a/k/a Saladine Sweets, was Yates’s co-defendant. His appeal
was listed consecutively with this appeal.

                                           -2-
J-S20038-17


     that the bullet entered from the back and exited the front of her
     leg.

            Lakeisha Jessie was also at the scene and spoke to Officer
     Marion when he arrived. Lakeisha identified [Yates] and [Biggs]
     as the shooters to Officer Marion at this time. Once Kimberly was
     transported to the hospital, Lakeisha was brought to East
     Detective’s Division to make an official statement. Detectives
     Kahlan and Daley interviewed Lakeisha at about 11:35 PM. At this
     time, Lakeisha again identified [Yates] and [Biggs] as the
     individuals who had shot at her nephew, Raheim Jackson, and his
     mother Kimberly. She stated that she saw both men holding black
     handguns.

            After being treated for her injuries, Kimberly Jessie was also
     interviewed by Detectives Kahlan and Daley that night. Detective
     Daley described her as “hysterical. She was in a lot of pain. She
     was upset, angry, a lot of emotions.” Kimberly had brought the
     jeans she had been wearing to the detectives, who placed them
     on a property receipt. During this interview, Kimberly also
     identified [Yates] and [Biggs] as the shooters, and circled both of
     their pictures. She told detectives that she saw each man holding
     a handgun, one black and one silver. Although the interview was
     cut short due to the pain Kimberly was in, she was able to review
     and sign her statement that evening.

            Detectives Ellis and McCullough processed the scene of the
     shooting to search for evidence. After an initial search of the area
     did not yield any results, they went to Temple University Hospital
     to speak to Kimberly Jessie, who was still being treated at that
     time. They learned that she had been shot closer to 9 th Street,
     and returned to the scene to refocus their search.             They
     discovered two fired cartridge casings east of 9 Street, in an area
                                                     th

     that had not been previously secured as part of the crime scene.
     The first casing was found under a Chevrolet Impala parked at the
     southeast corner of 9th and Pike Streets. The second casing was
     recovered from under a Toyota Corolla in the same area. The
     Toyota Corolla appeared to have a bullet hole in the hood. Both
     fired cartridge casings were of the same make and model.
     Firearms examiner Letitia Cannon examined the fired cartridge
     casings and concluded that they had been fired from the same
     firearm.

          Another bullet went into the home of Della Jamison at 3900
     North Delhi Street, at the corner of Pike Street. Ms. Jamison


                                     -3-
J-S20038-17


      testified that she had heard what sounded like gunshots that
      evening, and thought something may have hit her house. Upon
      going upstairs later that night, she found damage to a hat and
      perfume bottle. Officer Malcolm Scott investigated Ms. Jamison’s
      house the next day when she reported the damage. In his report,
      Officer Scott noted that a “possible bullet went through the front
      bedroom wall, traveled through the middle bedroom, and is
      lodged in the bedroom wall.”

            On August 10, 2013, Sergeant Wali Shabazz was making an
      unrelated car stop at 10th and Butler Streets in the same
      neighborhood as the shooting and was approached by Kimberly
      Jessie. After finishing the car stop, Sergeant Shabazz walked over
      to Kimberly to speak with her. She told him that he should “be
      looking for the people that shot me,” and that she was “scared for
      myself and my kids.” Sergeant Shabazz asked her for the names
      of the men who shot her, and she responded with [Yates’s] and
      [Biggs’] names.

            Sergeant Shabazz found a warrant for [Yates], and went to
      the address listed at the 3900 block of Franklin Street. When
      [Yates] came to the door, Sergeant Shabazz, who was in full
      uniform, told him he was there to respond to a burglary alarm.
      When [Yates] replied that he did not have an alarm, Sergeant
      Shabazz excused himself and called for backup. When Sergeant
      Shabazz returned to the door, [Yates’s] wife answered. [Yates]
      then tried to slam the door on Sergeant Shabazz and ran towards
      the back of the house. Sergeant Shabazz pursued him to the back
      door and was able to place [Yates] under arrest.

            Sergeant Shabazz remained in touch with Kimberly Jessie
      regarding [Biggs], whose whereabouts were still unknown at the
      time. [Biggs] was not present in the City of Philadelphia, and was
      eventually apprehended by United States Marshalls (sic) on
      November 8, 2013.

Trial Court Opinion, 6/17/2016, at 2-5 (record citations omitted).

      Relevant to this appeal, at trial, both Kimberly Jessie and her sister,

Lakiesha Jessie, recanted their statements to the police and denied ever

identifying Yates or Biggs as the assailants. Raheim Jackson, the apparent

intended victim of the shooting, never cooperated with the authorities, telling


                                     -4-
J-S20038-17



them only “some niggas were shooting and that’s all I want to say,” 3 as well

as this brief exchange:

        Police Detective: Your Mom was shot, don’t you think you owe to
        her to cooperate and tell us what you can about the incident?

        Witness: My Mom had me arrested on the same day I was going
        to get a job with the school board so she wasn’t looking out for
        me.

Id. at 3.

        In his first issue, Yates claims there was insufficient evidence to support

any of his convictions. His post-trial motion failed to specify what elements

of any of the crimes were not proven. While this can result in waiver, here,

the trial court did address certain aspects of insufficient evidence, thereby

allowing for appellate review.4 However, we will only review those issues that

were addressed by the trial court’s opinion, as “issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”

Commonwealth v. McGriff, 160 A.3d 863, 872 (Pa. Super. 2017) (citation

omitted); Pa.R.A.P. 302. Accordingly, below we discuss the issues addressed

by the trial court regarding sufficiency of the evidence.




____________________________________________


3   Commonwealth Exhibit 9, Police Interview, 6/18/2013, at 2.

4See Commonwealth v. Tyack, 128 A.3d 254 (Pa. Super. 2015) (vague
Pa.R.A.P. 1925(b) statement can result in waiver); Commonwealth v.
Smith, 955 A.2d 391 (Pa. Super. 2008) (en banc) (where trial court files an
opinion meaningfully addressing vague Pa.R.A.P. 1925(b) statement, waiver
may be avoided).

                                           -5-
J-S20038-17



      Initially,   “A   conviction   for   attempted   murder     requires   the

Commonwealth to prove beyond a reasonable doubt that the defendant had

the specific intent to kill and took a substantial step towards that goal.”

Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008) citing 18

Pa.C.S. §§ 901, 2502. Additionally, “It is well-settled that specific intent to

kill can be established through circumstantial evidence such as the use of a

deadly weapon on a vital part of the victim's body.” Commonwealth v.

Johnson, 107 A.3d 52, 66 (Pa. 2014) (citations omitted). Such intent may

also be proven through evidence the defendant fired multiple shots at the

victim, even though none of the shots struck the victim in a vital organ. See

Commonwealth v. Manley, 985 A.2d 252 (Pa. Super. 2009).

      Here, the police statements of both Kimberly Jessie and Lakeisha Jessie

identified Yates as one of the individuals shooting at Raheim Jackson, and

multiple witnesses, including the Jessie sisters, reported hearing the assailants

fire between four and six shots each at Raheim Jackson and his mother,

Kimberly Jessie. Additionally, the police found two spent shell casings, both

of which came from the same gun, in the immediate area of the shooting.

Moreover, there was evidence the shootings took place following a

confrontation between Jackson and Yates, ending with Yates and Biggs

chasing Jackson down the street while firing at him. In view of the foregoing,




                                      -6-
J-S20038-17



we agree with the trial court there was sufficient evidence to support a finding

of guilt regarding attempted murder.5

       Next, the trial court determined there was sufficient evidence to support

the verdicts on the firearms charges, 18 Pa.C.S. §§ 6105, 6106, and 6108.6

The trial court noted that it was stipulated that Yates was not eligible to

possess a firearm under § 6105. Because Yates could not obtain a license for

a firearm, pursuant to § 6105, and there was no question the incident took

place in Philadelphia, the open question was simply whether Yates had a

firearm in his possession. The trial court noted that both Kimberly Jessie and

Lakeisha Jessie gave statements to the police that Yates had a handgun in his

possession. That fact, coupled with spent shell casings at the shooting scene,

and additional testimony confirming shots were heard at the relevant time,




____________________________________________


5 In his appellant’s brief, Yates also argued the Commonwealth failed to argue
the applicability of transferred intent in this case. Transferred intent is
relevant if one believes that Raheim Jackson was the intended target of the
shooting, but his mother was inadvertently struck. We note the trial court
instructed the jury regarding transferred intent without objection from either
of the defendants. See N.T. Trial, 1/28/2013, at 20-21. Additionally, the
argument is waived as that specific claim was not raised before the trial court
and was not addressed by the trial court in its trial court opinion. A defendant
may not raise an issue for the first time on appeal. McGriff, supra.

6Persons not to possess a firearm, firearms not to be carried without a license,
and carrying firearms in public in Philadelphia, respectively.




                                           -7-
J-S20038-17



provide sufficient evidence to support the convictions on the firearms

charges.7

       In view of the above, Yates is not entitled to relief on his claim of

insufficient evidence.

       Next, Yates argues the verdict was against the weight of the evidence.

Although the claim was preserved in a post-sentence motion, once again, the

claim was non-specific. Nevertheless, the trial court understood the claim to

reference Kimberly Jessie and Lakiesha Jessie both disavowing their signed

statements to the police.8 Our standard of review for a challenge to the weight

of the evidence is, as follows:




____________________________________________


7 Yates argued there was insufficient evidence to support the firearms
convictions under section 6106 and 6108 because the Commonwealth failed
to present any evidence of barrel length of the guns used in the shootings.
See Commonwealth v. Todd, 384 A.2d 1215 (Pa. 1978) (barrel length is an
essential element of the offenses defined in sections 6105 and 6106). Barrel
length of a weapon is specifically part of the definition of a firearm found in
Pa.C.S. § 6102. We note the definition of “firearm” has been amended
regarding section 6105, and certain exceptions, not applicable herein, to
section 6106. See also, Commonwealth v. Gillespie, 821 A.2d 1221 (Pa.
2003) (recognizing the definitional change as to section 6105 only). However,
Yates did not raise this specific claim before the trial court and the trial court
did not address the claim. Accordingly, it has been waived.

8 At trial, Kimberly Jessie testified, “If you all ain’t send those people to my
mom’s house, I never came here. [The Commonwealth sent police to Kimberly
Jessie’s residence to make certain she came to court to testify.] I just want
to be over with this. I am done with it. I moved on with my life and my
grandkids. I don’t want to be bothered or talking about this anymore. I don’t
feel like they life-threatening to me or my children. I just want to leave.” N.T.
Trial, 1/21/2015 at 38.

                                           -8-
J-S20038-17


     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of review
     applied by the trial court:

        Appellate review of a weight claim is a review of the exercise
        of discretion, not of the underlying question of whether the
        verdict is against the weight of the evidence.
        [Commonwealth v.] Brown, 648 A.2d [1177] at 1189
        [(Pa. 1994)].      Because the trial judge has had the
        opportunity to hear and see the evidence presented, an
        appellate court will give the gravest consideration to the
        findings and reasons advanced by the trial judge when
        reviewing a trial court's determination that the verdict is
        against the weight of the evidence.. Commonwealth v.
        Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One
        of the least assailable reasons for granting or denying a new
        trial is the lower court's conviction that the verdict was or
        was not against the weight of the evidence and that a new
        trial should be granted in the interest of justice.
     [Commonwealth v.] Widmer, 560 Pa. [308] at 321-22, 744
     A.2d [745] at 753 (emphasis added).

     This does not mean that the exercise of discretion by the trial court
     in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In describing
     the limits of a trial court's discretion, we have explained:

        The term “discretion” imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion
        within the framework of the law, and is not exercised for the
        purpose of giving effect to the will of the judge. Discretion
        must be exercised on the foundation of reason, as opposed
        to prejudice, personal motivations, caprice or arbitrary
        actions. Discretion is abused where the course pursued
        represents not merely an error of judgment, but where the
        judgment is manifestly unreasonable or where the law is not
        applied or where the record shows that the action is a result
        of partiality, prejudice, bias or ill-will.
     Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M.
     Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
     (1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1055-56 (Pa. 2013).


                                     -9-
J-S20038-17



         Here, the trial court succinctly determined:

         In the instant case, [Yates] and his co-defendant were
         immediately identified by the complainant and her sister as the
         shooters. Although both women testified differently at trial,
         evidence of the earlier statements made to police were presented
         and entered into evidence. The jury had the opportunity to
         observe these inconsistencies in testimony and was able to take
         this into account when deliberating. The fact that [Yates] and Co-
         Defendant were found guilty after all the evidence was presented
         was not contrary to the evidence or shocking to the conscience.

         The jury is always free to determine which testimony to believe
         and how much weight to give testimony. Here, the jury chose to
         credit the statements of the complainant and her sister, and the
         testimony of the detectives investigating the case. The fact that
         the jury found [Yates] and his co-defendant guilty after weighing
         all the evidence does not shock one’s sense of justice.

Trial Court Opinion, 6/17/2016, at 6-7 (citation omitted).

         We have reviewed the certified record and find no abuse of discretion in

the trial court’s determination. Therefore, Yates is not entitled to relief on this

issue.

         In his third issue, Yates claims the trial court erred in providing an

erroneous identification charge to the jury. Specifically, Yates argues the trial

court misled the jury by suggesting Kimberly Jessie and Lakeisha Jessie had

identified him as a shooter at trial.

         Our review of a challenge to a jury charge is well settled:

         “When reviewing a challenge to a jury instruction, we review the
         charge as a whole to ensure it was a fair and complete statement
         of the law.” Trial courts possess great discretion in phrasing jury
         instructions so long as the law is clearly, adequately, and
         accurately presented to the jury. “[A] trial court need not accept
         counsel’s wording for an instruction, as long as the instruction
         given correctly reflects the law.”

                                        - 10 -
J-S20038-17



Commonwealth v. Towles, 106 A.3d 591, 607 (Pa. 2014) (internal citations

omitted), cert. denied, 135 S.Ct 1494 (U.S. 2015).

      The trial court initially instructed the jury as follows:

             Now, in their testimony, Lakeisha Jessie and Kimberly Jessie
      have identified the defendants as persons who committed the
      crime. In evaluating their testimony in addition to the other
      instructions I provided to you for judging testimony of witnesses,
      you should consider the following factors: Did the witness have a
      good opportunity to observe the perpetrator of the offense; was
      there sufficient lighting for them to make their observation; where
      (sic) they close enough to the individual to note their facial and
      other physical characteristics as well as any clothing they were
      wearing; have they made prior identification[s] of the defendant
      as perpetrator of these crimes or at any other proceedings; was
      their identification positive or was it qualified by any hedging or
      inconsistencies; during the course of this case did the witness
      identify anyone else as [a] perpetrator.

            In considering whether or not to accept testimony of
      Lakeisha Jessie and/or Kimberly Jessie you should consider all the
      circumstances under which the identification[s] were made.

                                     ****

            You cannot find defendant guilty unless you are satisfied
      beyond a reasonable doubt by all the evidence, direct and
      circumstantial, not only that the crime was committed, but that it
      was [the] defendant who committed it.

N.T., 1/28/2015, at 15-17.       At the conclusion of the charge, the court

conducted a brief sidebar discussion with counsel, and then returned with the

following additional instructions concerning identification evidence:

            And as for the instruction I gave you regarding identification
      testimony by the witnesses that I mentioned to you previously, I
      want to make it clear that that instruction which starts off with “in
      their testimony the witnesses have identified the defendant as
      [the] person who committed the crime”, that refers to the
      previous identification done to the police and statements that


                                      - 11 -
J-S20038-17


      were recorded by the police which were presented to the witness
      in court. And I’m referring to their previous identification.

            That’s what that instruction which deals with identification
      testimony that I read to you and it applies to the witness that I
      gave to you which previously were Lakeisha Jessie, Kimberly
      Jessie, and I believe, I just covered Lakeisha Jessie and Kimberly
      Jessie.

Id. at 29. After the jury retired for deliberations, Yates’s attorney objected to

the court’s additional instruction, requesting the court specifically instruct the

jury “there was no identification evidence presented from either of these two

witnesses in court[.]”    Id. at 32.     Further, he complained the additional

instruction was inadequate because it was up to the Commonwealth to prove

“whether or not these women identified these two defendants as the doers,”

and that “the jury has now been instructed that [the witnesses] did in fact do

that at some point.” Id. Trial counsel for co-defendant Biggs joined in Yates’s

objection.    See id. at 33. However, the court determined the instruction

was proper. See id. at 35.

      We find no reason to disagree with the trial court’s ruling. Although the

court initially misstated that Lakeisha and Kimberly had identified Biggs and

Yates in their trial testimony, its additional instruction made clear that the

witnesses identified Yates and Biggs only in their prior statements to police.

The court had earlier instructed the jury that it could accept those prior

inconsistent statements in judging the witnesses’ credibility, and could “regard

[that] evidence as proof of the truth of anything that the witness said in the

earlier statement.” Id. at 21.




                                       - 12 -
J-S20038-17



      Prior to deliberation, the trial court corrected its misstatement and

accurately stated that both witnesses had identified Yates as a shooter prior

to trial.    Examined in the context of the entire jury charge, including the

instruction regarding credibility and inconsistent statements, we find the

court’s charge “clearly, adequately, and accurately” presented the law to the

jury, as required by Towles, supra. Accordingly, Yates is not entitled to relief

on this issue.

      In his final argument, Yates claims the trial court erred in announcing a

stipulation to the jury, he had not agreed to. On January 22, 2015, the trial

court informed the jury as follows:

      Ladies and Gentlemen, it has been agreed to among counsel
      regarding the issue locating the bullet or fragment that Officer
      Scott came out to the house two days later, as this witness [Dr.
      Rev. Della Jamison] has testified, and he was unable to find the
      bullet or bullet fragment at that time.

N.T. Trial 1/22/2015, at 91.

      Although counsel for Yates objected to this “stipulation,” in discussing

the issue at sidebar, counsel indicated his argument regarding the bullet was

as follows:

      And eventually instead [of] arguing no bullet, I’m going to argue
      they looked for it and didn’t find it. That’s all. And they didn’t.
      The police didn’t find it.

Id. at 88.




                                      - 13 -
J-S20038-17



       While counsel’s intended argument appears to mirror the stipulation,9

counsel objected. Over counsel’s objection, the stipulation was announced to

the jury.    Assuming, arguendo, that the trial court erred in announcing a

stipulation that was not specifically agreed to, Yates nonetheless fails to

demonstrate prejudice. He argues he was prejudiced because,

       The Court allowed testimony with regard[] to the bullet entering
       into Ms. Jameson’s home presumably to allow the Commonwealth
       to prove the intent to kill on behalf of the doers. This stipulation
       may or may not have swayed the jury to ultimately find that the
       doers had the intent to kill; that is because this particular evidence
       would clearly go to prove malice on behalf of the doers.

Yates’s Brief at 28.

       This argument is illogical. The “stipulation” merely noted that two days

after the shooting, a police officer, following up on the report of a bullet coming

through a window, could not find any bullet at that time. We cannot see how

the stipulated inability to find a stray bullet demonstrates the “doers” were

intent upon killing someone. Additionally, Yates has argued that the defense

of this matter was one of identity – Yates denied he was one of the assailants.

See Yates’s Brief, at 26 (“The defense in the case was of identification, nor

[sic] self-defense or another affirmative defense.”). The “stipulated” fact did

nothing to prejudice that defense.



____________________________________________


9 The trial court announced the “stipulation” in order to prevent any of the
parties from inadvertently opening the door to the fact that a bullet fragment
was found in Dr. Jamison’s wall sometime later. The fragment had been
previously ruled inadmissible.

                                          - 14 -
J-S20038-17



      Because Yates can demonstrate no prejudice, he is not entitled to relief

on this issue.

      In light of the foregoing, we find that Yates is not entitled to relief on

any of his claims. Accordingly, his judgment of sentence must be affirmed.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/17




                                    - 15 -
