J-S82025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM GREENE                             :
                                               :
                       Appellant               :   No. 2770 EDA 2017

             Appeal from the Judgment of Sentence April 24, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006935-2016


BEFORE:      LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                                FILED MARCH 05, 2019

       Appellant, William Greene, appeals from the judgment of sentence

following his jury trial convictions for second-degree murder, robbery,

possessing an instrument of crime, carrying a firearm without a license, and

carrying a firearm in public in Philadelphia.1 We affirm.

       The trial court summarized the facts of this case as follows:

       On August 13, 2014, Alexis Guevara and his friend Marcell
       Lawrence attended a concert hosted by Power 99 at the Dell Music
       Center in the Strawberry Mansion section of the city [of
       Philadelphia]. The concert started at 5:00 p.m. and was due to
       conclude at 9:00 p.m. Guevara and Lawrence arrived late and
       were denied entrance. They decided to hang out in the parking
       lot.

       Later, [Appellant] and Eric Jamison arrived at the same concert
       and were denied admission because, they too, arrived late.
       [Appellant] and Jamison also decided to hang out in the same
____________________________________________


1   18 Pa.C.S.A. §§ 2502(b), 3701, 907, 6106, and 6108, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      parking lot. While Guevara and Lawrence were talking to girls in
      the parking lot, Lawrence noticed that Jamison was sitting on the
      trunk of his car, and called out, “get off my car.” In response,
      Jamison walked directly toward Lawrence and confronted him
      saying, “Why? What’s up,” in a confrontational tone. During the
      confrontation between Jamison and Lawrence, [Appellant] came
      around from the other side of the car and produced a gun. With
      his gun drawn, [Appellant] said “Hey, Gold Watch. Run your
      pockets,” indicating a robbery was occurring. Jamison then
      attempted to reach into Lawrence’s pockets.

      A struggle between Guevara and [Appellant] followed. [Appellant]
      backed away and shot Guevara, striking him in the leg causing
      him to fall. [Appellant] then shot Guevara again, this time hitting
      him on the left side of his lower back. Afterward, both [Appellant]
      and Jamison ran to the car they arrived in and sped away.
      Lawrence then came to the aid of the now fatally injured []
      Guevara.

      After the shooting, Lawrence ran to the entrance gate of the Dell
      Music Center seeking help for his friend. However, the security
      guards closed the gate to keep [any potential] shooter from
      entering the venue during the concert. Meanwhile, Stephen
      Foster witnessed the entire incident as he sat facing the main
      gate. He had arrived at the Dell Music Center to pick up his
      daughter who was inside attending the concert. Later, police
      officers arrived and transported Guevara to Temple University
      Hospital, where he died the next morning.

      Both [Appellant] and Jamison were later identified as the two men
      involved in the Dell Music Center parking lot shooting. In addition,
      Lawrence, Jamison and Foster all identified [Appellant], in court
      during trial, as the person who shot the decedent.

      While in custody, Jamison received a letter from [Appellant]
      encouraging Jamison to remain positive despite murder charges
      lodged against him. The unsigned letter was consistent with
      [Appellant’s] unique manner of speaking, emotional inflection,
      and expressions that only he used while speaking to Jamison.

Trial Court Opinion, 4/25/2018, at 2-3 (record citations omitted).

      The case proceeded as follows:



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       On April 24, 2017, a jury convicted [Appellant of the
       aforementioned charges]. [Appellant] was sentenced to life
       imprisonment without the possibility of parole on the
       second[-]degree murder charge. On May 5, 2017, trial counsel,
       Gary S. Silver, Esquire, filed a post sentence motion and a motion
       to withdraw. On August 29, 2017, [the trial] court issued an order
       denying [Appellant’s] post sentence motion, and [Appellant] filed
       a notice of appeal. On August 29, 2017, [the trial] court ordered
       [Appellant] to file a [Pa.R.A.P.] 1925(b) statement of [errors]
       complained of on appeal. Subsequently, on September 15, 2017,
       [the trial] court granted [Attorney] Silver’s motion to withdraw.
       John M. Belli, Esquire, entered his appearance as court appointed
       appellate counsel on October 20, 2017. On November 27, 2017,
       [Attorney] Belli filed a statement of [errors] complained of on
       appeal pursuant to Pa.R.A.P. 1925(b). On November 28, 2017,
       Laurence A. Narcissi, Esquire, was retained as appellate counsel,
       and [he] filed a motion for an extension of time within which to
       file a Rule 1925(b) statement. On December 12, 2017, [the trial]
       court granted said motion. On December 22, 2017, counsel filed
       a second motion for an extension of time [which the trial court
       granted]. [Appellant] filed a [timely] Rule 1925(b) statement on
       January 18, 2018. [The trial court issued an opinion pursuant to
       Pa.R.A.P. 1925(a) on April 25, 2018.]

Id. at 1-2.

       On appeal, Appellant presents the following issues for our review:

       1. Did the trial court err in the admission of a de facto confession
          alleged to have been authored by [A]ppellant, when the
          prejudicial effect of such far outweighed any probative value?

       2. Did the trial court err in the admission [of the de facto
          confession] by overruling an objection to the admission of
          “prior kites?”2

       3. Did the trial court commit an abuse of discretion by overruling
          a motion for a mistrial pursuant to [Pa.R.Crim.P.] 646 [and


____________________________________________


2  There is no dispute that “[a] kite is a letter sent in prison from one inmate
delivered by a second inmate to a third.” Appellant’s Brief at 10-11 (record
citations omitted).

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          permitting] the jury to have a copy of a confession during
          deliberation?

       4. Did the trial court err [by] denying a request to instruct the
          jury [that witness identification must be received with caution]
          and [granting the Commonwealth’s request to instruct the jury
          on consciousness of guilt/flight]?3

Appellant’s Brief at 8 (issue numbers supplied).

       Appellant’s first three issues are inter-related and, accordingly, we will

examine them together.          All three issues center on an unsigned letter, or

“kite,” Jamison purportedly received from Appellant while both men were

imprisoned on charges related to this case.      It read:

       Yo, bro! Wassup baby? I'm chillin. As you already no they came
       and recharged me but you no how I am. Stand up n[****] all the
       way. No need to cry about it. You feel me. Just take it from here
       and find out who the f[***] is the surprise is. You gotta get on
       your lawyer top about that. That's gotta be the reason they put
       the separation in on us because they no you got your discovery
       already and they no you can find who the surprise is because you
       in trial status already and they don't want me to no. Feel me. Who
       care it is. They not locked up because I didn't have no separations
       down CJC. So we gotta find out ASAP so we can get that tooked
       care of. Stay on your lawyer a[**].

       Give Weezy your lawyer number so he can be on his a[**] too.
       The lawyer Gary Silver came to see me but he wasn't at my court
       date because n[*****] bullshi[*****] giving him the money.
       When he came up he basically told me you good and don't
       understand why you charges didn't get dropped let alone why you
       get charged in the first place. He said even if a witness came to
____________________________________________


3   In his fourth issue presented, Appellant also baldly contends, without any
corresponding argument, that the trial court erred by failing to give jury
instructions regarding impeachment and inconsistent statements.            See
Appellant’s Brief at 8, 20-22. We find these aspects of Appellant’s fourth
claim waived. See Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014)
(failure to develop an argument with citation to supporting authorities and the
record are waived).

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      Court and tell the truth you can't get convicted because it's a third
      degree case all day. It wasn't planned. You had no knowledge of
      what the next man (the shooter) was gone do. Even if you fled
      the scene you was scared of getting shot. So you good.

      Now me on the other hand gotta try to handle this the street way.
      So you gotta find that out for me, but other than that, wassup
      with you over there? Is it crowded? I need some get high. I get
      admin July 23rd. I'm chillin. Ray Ray and Donnie down here so I
      eat every night.    I just be drinking coffee and busting on
      everybody, lol, even n[*****] I don't no. They be mad as s[***].
      F[***] em. I go back down the 28th of this month.

N.T., 4/20/2017, at 35-36. The letter was addressed to “Eroc,” Jamison’s

nickname and signed, “Who you already know.” Id. at 37. In the margin of

the kite, it says, “Stand tall like City Hall” and, “Love you, bro.” Id. at 34.

      At trial, the Commonwealth entered the kite into evidence over defense

objection. Appellant claims the kite was not authenticated because was it was

not signed, lacked an identifying inmate number, and the Commonwealth did

not introduce Appellant’s handwriting samples for evaluation.         Appellant’s

Brief at 18.    Appellant further argues that the kite was not properly

authenticated merely because Jamison said Appellant authored it and it

contained specific facts about the crimes at issue. Id. at 17. Appellant argues

that while Jamison claimed that he could verify the kite at issue based upon

his receipt of prior kites from Appellant, no prior kites were presented for

comparison. Id. at 18. Thus, Appellant contends “the trial court improperly

concentrated [on] Jamison[’s] ability to self-verify the kite.” Id. Appellant

further maintains that the trial court compounded its error by inadvertently

allowing the kite, which Appellant describes as a confession, to go out with



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the jury during deliberations, in contravention of Pa.R.Crim.P. 646 and related

case law. Id. at 19.

      Our standard of review is as follows:

      The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the trial
      court upon a showing that it abused its discretion or committed
      an error of law. Thus our standard of review is very narrow. To
      constitute reversible error, an evidentiary ruling must not only be
      erroneous, but also harmful or prejudicial to the complaining
      party.

      Abuse of discretion is not merely an error of judgment, but rather
      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.

Commonwealth v. Bond, 190 A.3d 664, 667 (Pa. Super. 2018) (internal

citations and quotations omitted).

      We begin with authentication of the kite. Pennsylvania Rule of Evidence

901 provides that authentication is required prior to admission of evidence.

The proponent of the evidence must introduce sufficient evidence that the

matter is what it purports to be. Pa.R.E. 901(a). Testimony of a witness with

personal knowledge that a matter is what it is claimed to be can be sufficient

authentication. See Pa.R.E. 901(b)(1). Authentication may also be achieved

through “[t]he appearance, contents, substance, internal patterns, or other

distinctive   characteristics   of   the    item,   taken   together   with   all   the

circumstances.” Pa.R.E. 901(b)(4). We previously determined:

      A document may be authenticated by direct proof, such as the
      testimony of a witness who saw the author sign the document,

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      acknowledgment of execution by the signer, admission of
      authenticity by an adverse party, or proof that the document or
      its signature is in the purported author's handwriting. A document
      also may be authenticated by circumstantial evidence, a practice
      which is uniformly recognized as permissible.

Commonwealth v. Koch, 39 A.3d 996, 1004 (Pa. Super. 2011) (internal

citations and quotations omitted).

      Moreover,

      [w]e note that the ultimate determination of authenticity is for the
      jury. A proponent of a document need only present a prima facie
      case of some evidence of genuineness in order to put the issue of
      authenticity before the factfinders.

      The court makes the preliminary determination of whether or not
      a prima facie case exists to warrant its submission to the finders
      of fact, but the jury itself considers the evidence and weighs it
      against that offered by the opposing party[.]

Commonwealth v. Brooks, 508 A.2d 316, 320 (Pa. Super. 1986) (internal

citations omitted; emphasis in original).

      The trial court determined that the kite was properly authenticated:

      [T]he Commonwealth demonstrated that [the kite] referenced
      murder of the third[-]degree, contained displays of affection,
      suggested a possible defense for Jamison’s criminal charges, and
      mirrored a style and cadence of speaking similar to the way
      [Appellant] and Jamison spoke to each other. Jamison positively
      identified [Appellant] as the writer of the letter and stated that
      [Appellant] often communicated with him in a manner similar to
      that of the letter.

Trial Court Opinion, 4/25/2018, at 5.

      Upon review, we discern no abuse of discretion in determining that the

kite was properly authenticated. Jamison testified that he knew Appellant for

over 13 continuous years prior to trial. N.T., 4/19/2017, at 130-131. Jamison


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testified that the kite was written in Appellant’s handwriting. N.T., 4/20/2017,

at 32-33. In the kite, there is a specific reference to Appellant meeting with

his court appointed trial counsel, Gary Silver, Esquire to discuss charges. Id.

at 35. Appellant used Jamison’s childhood nickname, “Eroc,” as a salutation

in the kite. Id. at 37. The kite suggests that there is a surprise witness in

the case and encourages Jamison to find out who it is and asks him not to

snitch.   Id. at 35-38.   The kite, however, falls short of documenting a

confession. Instead, the kite explains that Jamison could not be found guilty

of third-degree murder because he fled the scene and had no knowledge of

what “the shooter” was going to do. See id. at 36 (“[Attorney Silver] said

even if a witness came to court and tell the truth, you can’t get convicted

because it’s a third degree case all day.    It wasn’t planned.    You had no

knowledge of what the next man (the shooter) was [going] to do. Even if you

fled the scene you [were] scared of getting shot. So you good.”). However,

the kite attributes the shooting to another person.

      Here, the Commonwealth presented a prima facie case of authenticity

through Jamison’s personal knowledge that the kite was what it was claimed

to be. Appellant and Jamison were childhood friends and the kite’s author

used Jamison’s childhood nickname and terms of affection.         The kite also

specifically referenced Appellant’s court-appointed counsel by name and

employed colloquial language similar to other communications between

Appellant and Jamison.    The substance and content of the kite dealt with

detailed factual issues pertaining to Appellant and this case.     As such, we

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discern no abuse by the trial court in determining the kite was properly

authenticated.

      Next, we examine whether the trial court erred in allowing the kite to

go out with the jury during its deliberations. This Court has found:

      Ordinarily, whether an exhibit should be allowed to go out with
      the jury during its deliberation is within the sound discretion of
      the trial judge.

      This discretion, however, is not absolute. Pennsylvania Rule of
      Criminal Procedure 646 expressly forbids juries from having
      certain enumerated categories of exhibits during deliberations,
      including written defendant confessions. See Pa.R.Crim.P.
      646(C). The underlying reason for excluding certain items from
      the jury's deliberations is to prevent placing undue emphasis or
      credibility on the material, and de-emphasizing or discrediting
      other items not in the room with the jury. If there is a likelihood
      that the importance of the evidence will be skewed, prejudice may
      be found; if not, there is no prejudice per se and the error is
      harmless.

Commonwealth v. Miller, 172 A.3d 632, 648 (Pa. Super. 2017) (quotations,

original brackets, and case citations omitted).

      Here, the trial court “concluded that the letter was not a confession, and

thus its admission did not prejudice [Appellant] or result in an unfair trial.”

Trial Court Opinion, 4/25/2018, at 9. The trial court further found that the

kite was only in the jury’s possession for less than 30 minutes. Thus, the trial

court determined the kite could not have impacted the jury’s decision in light

of the fact that they heard it read into the record in its entirety and the

Commonwealth highlighted it during closing arguments. Id. at 9-10. Upon

review, we agree with the trial court’s assessment.



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      Primarily, we note that Appellant concedes that, “defense counsel

initially consented to the kite going back with the jury deliberations.”

Appellant’s Brief at 19; see also N.T., 4/24/2017, at 11 and 13 (“the initial

position of defense counsel had been that the kite would go out.”).       Defense

counsel changed tack later, arguing “the determination of a confession is

liberally viewed at this time by the appellate courts[; a]s such, it could be

construed in this letter, even though it wasn’t specifically [Appellant’s] position

and has not been [Appellant’s] position that it was a confession, but it can be

construed to be a confession in this manner.”          N.T., 4/24/2017, at 15.

Appellant did not change his argument until after the jury already had the

kite. Thus, Appellant waived his arguments that the kite was a confession and

that it should not have gone out with the jury.        See Commonwealth v.

Roles, 116 A.3d 122, 130 (Pa. Super. 2015) (“Trial counsel specifically stated

on the record that he had no objection to the documents that were given to

the jury. Thus, even if the exhibits were somehow included among the

admitted exhibits provided to the jury, the issue is waived.”).

      Moreover, we discern that the kite did not constitute a confession by

Appellant. “Confession” is defined as “[a] criminal suspect's oral or written

acknowledgment of guilt, often including details about the crime.” BLACK'S LAW

DICTIONARY (10th ed. 2014).     Appellant never admits or denies shooting the

victim in the kite. Instead, he makes reference to “the shooter” or “the next

man.” There were no factual details provided about the crime. The proffered

kite simply did not rise to the level of a confession. Thus, Appellant is not

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entitled to relief on his claim that the trial court abused its discretion under

Rule 646.

      Finally, upon our review of the record, we observe that the trial court

charged the jury on a Friday, but they did not start their deliberations until

the following Monday morning. N.T., 4/24/2017, at 10. On Monday, the jury

asked to see the kite. Id. at 11. The trial court only realized that the kite

had gone out with the jury when they requested to see it. Id. The parties

conceded that “the kite was inadvertently presented to the jury and they had

it in their possession [] for some 30 minutes.” Id. at 12. Hence, it appears

that the jurors had the kite for 30 minutes at the beginning of their

deliberations, but still asked to see it. Because they were not even aware that

the kite was in their possession, they could not have reviewed it.

Subsequently, “after the kite was taken back from the jury, [but] before [the

trial court] could [call] the jury out for curative or cautionary instructions,”

the jury had decided the verdict. Id. at 20. Accordingly, from our review of

the certified record, it is not entirely clear whether the jury was aware that

the kite was in its possession during deliberations or otherwise relied upon it

in rendering the verdict.

      Next, Appellant challenges the trial court’s denial of a jury instruction

regarding witness identification pursuant to Commonwealth v. Kloiber, 106

A.2d 820 (Pa. 1954) and the trial court’s grant of the Commonwealth’s request

to charge the jury on flight and consciousness of guilt.      On these issues,

Appellant argues, in sum:

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      Trial counsel requested a Kloiber charge relating to
      inconsistencies in the identification of [Appellant] and objected to
      the flight charge. The request was based on the inconsistencies
      in the identification of [Appellant] and the description of the
      shooter as alternatively being five foot six inches or six foot two
      inches tall. The witnesses varied regarding the clothing the
      shooter was wearing and the shooter’s locations throughout the
      trial. The request for the charge was appropriate and the failure
      to give the charge was reversible error because it was warranted
      by the evidence [i]n the case.

      Giving the flight charge was inappropriate. The testimony elicited
      was that individuals involved after the shooting fled to a white
      vehicle and drove off immediately. The distinction is leaving the
      scene immediately after altercation versus flight to avoid arrest.
      [Appellant] was arrested at his home. For this charge to be
      correct then every individual who is not arrested immediately at
      the scene of the crime would be a factual circumstance justifying
      giving this charge.

Appellant’s Brief at 21-22.

      “Our standard of review when considering the denial of jury instructions

is one of deference—an appellate court will reverse a court's decision only

when it abused its discretion or committed an error of law.” Commonwealth

v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation and brackets omitted).

      We have summarized the law regarding the Kloiber charge as follows:

            [W]here the witness is not in a position to clearly
            observe the assailant, or he is not positive as to
            identity, or his positive statements as to identity are
            weakened by qualification or by failure to identify
            defendant on one or more prior occasions, the
            accuracy of the identification is so doubtful that the
            Court should warn the jury that the testimony as to
            identity must be received with caution.

      Commonwealth v. Kloiber, 106 A.2d 820, 826–827 (Pa. 1954).



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      The Kloiber charge alerts the jury where a witness might be
      physically incapable of making a reliable observation. This inquiry
      is distinct from the credibility determination a fact-finder must
      make. Our Supreme Court has found that even where witnesses
      were

            under the influence of alcohol, the room was dark,
            they had been awakened from sleep, and the events
            being observed were confusing ... Appellant's
            objections relate to the credibility of the eyewitness
            testimony, not to the actual physical ability of the
            witnesses to observe.... Accordingly, a Kloiber
            charge was not required.

      Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995).

Commonwealth v. Collins, 70 A.3d 1245, 1255 (Pa. Super. 2013).

      In this case, two eyewitnesses saw the entire shooting from close,

unobstructed vantage points. Appellant’s Kloiber charge argument is based

upon minor inconsistencies in their testimony. However, Appellant does not

argue that the witnesses were physically incapable of making reliable

observations.     Appellant’s objections related solely to the eyewitnesses’

credibility in making out-of-court identifications. However, both eyewitnesses

unequivocally identified Appellant as the shooter at trial.       Accordingly, a

Kloiber charge was not warranted. As such, we conclude the trial court did

not err in failing to issue a Kloiber jury instruction.

      Finally, in examining Appellant’s claim that the trial court erred by giving

an instruction on flight and consciousness of guilt, our Supreme Court has

stated:

      A jury instruction is proper if supported by the evidence of record.
      […W]hen a person commits a crime, knows that he is wanted

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      therefor, and flees or conceals himself, such conduct is evidence
      of consciousness of guilt, and may form the basis [of a conviction]
      in connection with other proof from which guilt may be inferred.

Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (internal citations

omitted). A reviewing court “need not determine whether or to what extent

a flight instruction must be supported by evidence other than an accused's

departure from the scene of the crime.” Id.

      Here, there is no dispute that Appellant fled the scene following the

shooting. Upon review, the trial court gave the following instruction:

      There was evidence, including the testimony of Eric Jamison, that
      tended to show that [Appellant] fled from Dell Music Center after
      the shooting in this case by driving from the scene at a high rate
      of speed. The credibility, weight and effect of that evidence is for
      you to decide.

      Generally speaking, when a crime has been committed and a
      person thinks he is or may be accused of committing that crime
      or those crimes and he flees, such flight is a circumstance tending
      to show the person is conscious of guilt.

      Such flight does not necessarily show consciousness of guilt in
      every case. A person may flee for some other motive and may do
      so even though innocent.

      Whether the evidence of flight in this case should be looked at as
      tending to show consciousness of guilt depends upon the facts and
      circumstances of this case and especially upon motives that may
      have prompted the flight.

      You may not find [Appellant] guilty solely on the basis of evidence
      of flight.

N.T., 4/21/2017, at 22-23. The evidence of record supported the instruction

and the trial court’s charge gave an accurate statement of the law.




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Accordingly, for all of the foregoing reasons, there was no trial court error

regarding jury instructions.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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