J-S48022-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
DANIEL ODEM, JR.,                       :
                                        :
                  Appellant             :   No. 2028 WDA 2014

        Appeal from the Judgment of Sentence November 14, 2014,
                  Court of Common Pleas, Mercer County,
            Criminal Division at No. CP-43-CR-0001612-2013

BEFORE: PANELLA, DONOHUE and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 27, 2015

      Appellant, Daniel Odem, Jr. (“Odem”), appeals from the judgment of

sentence entered on November 14, 2014 in the Court of Common Pleas,

Mercer County. For the reasons set forth herein, we affirm.

      The trial court provided a brief summary of the factual and procedural

history as follows:

            On October 10, 2013, at approximately 2:00 a.m.,
            Leonard Figgins [(“Figgins”)] was walking down
            Front Street in the City of Farrell when a car driven
            by [Odem] pulled up next to him. Figgins walked
            over to the car and the passenger window was
            opened. Just as Figgins got to the window, Sean
            Rain [(“Rain”)] “popped up” from the passenger seat
            and fired a shot at Figgins. Figgins fled and Rain
            pursued him on foot firing four (4) more shots. The
            third shot hit Figgins in the upper part of his right
            arm shattering the bone.

            Sergeant Charles Rubano [(“Sergeant Rubano”)] of
            the Southwest Mercer County Regional Police
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          Department was in the area at the time the shooting
          took place. He saw two (2) individuals exit the
          vehicle. Inside the vehicle, two (2) guns were found
          on the passenger side floor. One of the guns had
          five (5) spent casings in the magazine.

          [Odem]     was    apprehended   shortly   thereafter
          following a chase on foot.

          [Odem] was charged with two (2) counts of
          Aggravated Assault, two (2) counts of Firearms Not
          to be Carried without a License, two (2) counts of
          Recklessly Endangering Another Person, Discharge of
          a Firearm into an Occupied Structure, Attempted
          Murder, Criminal Conspiracy to Commit Aggravated
          Assault and Criminal Conspiracy to Discharge a
          Firearm into an Occupied Structure.

          A preliminary hearing was held on October 24, 2012,
          before Magisterial District Judge Ronald Antos. At
          the conclusion of that hearing, the charges of
          Attempted       Murder,  Aggravated   Assault   and
          Discharge of a Firearm into an Occupied Structure
          were dismissed and the balances of the charges were
          held for trial.

          [Odem] was arraigned on December 23, 2013, on
          the charges of Firearms Not to be Carried Without a
          License, two (2) counts, Recklessly Endangering
          Another Person, Criminal Conspiracy to Commit
          Aggravated Assault under 18 Pa.C.S.[A.] §
          2702(a)(1);    Criminal  Conspiracy    to  Commit
          Aggravated Assault under 18 Pa.C.S.[A.] §
          2701(a)(4) and Criminal Conspiracy to Commit
          Discharge of a Firearm into an Occupied Structure.
          On August 27, 2014, the Commonwealth filed a
          Motion to Amend the Information to include the
          charges of Attempted Murder and Criminal
          Conspiracy to Commit Murder.      The Motion was
          denied on September 8, 2014.

          A jury trial commenced on September 16, 2014.
          During the trial, on [m]otion of the Commonwealth,



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            the [i]nformation was amended to include charges of
            Aggravated Assault under sub-sections (a)(1) and
            (a)(4) and Discharge of a Firearm into an Occupied
            Structure solely on a theory of conspiratorial liability.
            A Directed Judgment of Acquittal was granted at the
            close of the Commonwealth’s case on the charges of
            Discharge of a Firearm into an Occupied Structure
            and Criminal Conspiracy to Discharge a Firearm into
            an Occupied Structure.

            On September 19, 2014, the jury returned verdicts
            of guilty on all the remaining charges.

            [Odem] was sentenced on November 14, 2014, to a
            term of imprisonment of not less than three (3)
            years nor more than 15 years on the charge of
            Aggravated Assault F-1 and concurrent terms of
            imprisonment on the remaining counts.

Trial Court Opinion, 1/16/15, 1-3 (internal citations omitted).

      Odem timely filed a notice of appeal on December 10, 2014.         On

appeal, Odem raises the following issues for our review,1 which we have

reordered for ease of disposition:

            I.    Did the    trial   court   err   in   amending   the
            information?

            II. Did the trial court err in failing to dismiss the
            case based upon a Brady violation?

            III. Did the trial court err in failing to instruct the
            jury that a negative inference could be drawn in the
            Commonwealth not providing video surveillance?

            IV. Did the trial court err in instructing the jury on
            the charge of conspiracy?


1
   We note that in his Concise Statement of Errors Complained of on Appeal,
Odem raised eight issues. Odem, however, has only presented four issues
in his brief, and accordingly, we only address these issues.


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Odem’s Brief at 4.

      For his first issue on appeal, Odem argues that the trial court erred in

amending the criminal information on the second day of trial to include

charges of aggravated assault attempt to cause serious bodily injury,

18 Pa.C.S.A. § 2702(a)(1)2, and aggravated assault with a deadly weapon,

18 Pa.C.S.A. § 2702(a)(4)3. Odem’s Brief at 15. The record reflects that at

the conclusion of the second day of trial, the Commonwealth requested the

trial court to add the two counts of aggravated assault under an accomplice

theory. N.T., 9/17/14, at 187-88. Counsel for Odem immediately objected

to the amendment. Id. at 188-89. Despite defense counsel’s objection, the

trial court permitted the amendment, explaining that the amendments would

not   be   permitted   under   accomplice    liability   as   requested   by   the

Commonwealth, but rather, would be included under conspiracy liability. Id.

at 189-90. In so doing, the trial court stated, “I understand that accomplice

is a little different concept, and I can see the prejudice there. … I will permit

the amendment on the theory that it will come in as conspirator, not

accomplice liability.” Id. The trial court further explained, “When you are


2
   “(a) Offense defined.--A person is guilty of aggravated assault if he: (1)
attempts to cause serious bodily injury to another, or causes such injury
intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1).

3
  “(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).


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J-S48022-15


charged with a conspiracy and if you are convicted you can be subject to

conviction under the underlying charge.     It’s a given.”   Id. at 189.   On

appeal, Odem contends that he was prejudiced by the amendments because

he had to employ a different trial strategy and did not have additional time

to prepare a defense. Id. at 15-16.

     Rule 564 of the Pennsylvania Rules of Criminal Procedure provides that

“[t]he court may allow an information to be amended when there is a defect

in form, the description of the offense(s), the description of any person or

any property, or the date charged, provided the information as amended

does not charge an additional or different offense.” Pa.R.Crim.P. 564. As

this Court held in Commonwealth v. Sinclair, 897 A.2d 1218 (Pa. Super.

2006), when presented with a challenge to the propriety of an amendment,

we must consider

           [w]hether the crimes specified in the original
           indictment or information involve the same basic
           elements and evolved out of the same factual
           situation as the crimes specified in the amended
           indictment or information. If so, then the defendant
           is deemed to have been placed on notice regarding
           his alleged criminal conduct.       If, however, the
           amended provision alleges a different set of events,
           or the elements or defenses to the amended crime
           are materially different from the elements or defense
           to the crime originally charged, such that the
           defendant would be prejudiced by the change, then
           the amendment is not permitted.

                                   ***




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                In reviewing a grant to amend an information,
            [this] Court will look to whether the appellant was
            fully apprised of the factual scenario which supports
            the charges against him. Where the crimes specified
            in the original information involved the same basic
            elements and arose out of the same factual situation
            as the crime added by the amendment, the appellant
            is deemed to have been placed on notice regarding
            his alleged criminal conduct and no prejudice to
            defendant results.

Id. at 1222 (citations omitted).

      This Court has held that “[r]elief is only proper where the amendment

prejudices the defendant.”   Commonwealth v. Veon, 109 A.3d 754, 768

(Pa. Super. 2015) (citing Sinclair, 897 A.2d at 1223).        To determine

whether an amendment results in prejudice, we must consider the following:

            (1) whether the amendment changes the factual
            scenario supporting the charges; (2) whether the
            amendment adds new facts previously unknown to
            the defendant; (3) whether the entire factual
            scenario was developed during a preliminary
            hearing; (4) whether the description of the charges
            changed with the amendment; (5) whether a change
            in defense strategy was necessitated by the
            amendment; and (6) whether the timing of the
            Commonwealth's request for amendment allowed for
            ample notice and preparation.

Veon, 109 A.3d at 768.

      In this case, Odem had already been charged with conspiracy to

commit aggravated assault.     The amendment to the criminal information

added two offenses of aggravated assault under 18 Pa.C.S.A. §§ 2702(a)(1),

(a)(4). Odem asserts that the amendment necessitated a change in defense

strategy, as he would have to “disprove that [Rain] specifically intended to


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cause injury to the victim.”     Odem’s Brief at 15-16.     The trial court,

however, found that Odem’s claim was meritless since the charges arose out

of the same factual situation and “[h]is defense would be the same because

he had to prevail on the conspiracy charges to be acquitted.”       Trial Court

Opinion, 1/16/15, at 5. After our review of the record, we agree.

     Odem knew at the time the charges against him were originally filed

that the Commonwealth sought to prove that he and Rain conspired to

attack the victim.    The amendment to include the substantive offenses of

aggravated assault arose out of the conspiracy charges and did not add any

additional facts unknown to Odem.     Rather, the amendment involved the

“same basic elements and arose out of the same factual situation” as the

original information. See Sinclair, 897 A.2d at 1222.

     Moreover, the amended information did not require Odem to change

his defense since the substantive offenses were the underpinnings of the

conspiracy charges.    Odem was still required to present a defense to the

conspiracy charges with which he was already charged and thus, was

required to disprove a conspiracy between him and Rain to commit

aggravated assault.    Prevailing on the conspiracy charges would exculpate

him of the substantive offenses.    Since the amended information did not

require Odem to change his defense, Odem’s contention that he did not have

adequate time to prepare since the amendment occurred at the conclusion




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J-S48022-15


of the second day of trial lacks merit. Accordingly, we conclude that Odem

failed to establish that the amendment resulted in prejudice.

         Odem also asserts that the trial court erred by amending the criminal

information sua sponte. Odem’s Brief at 16. Odem supports the trial court’s

decision to deny the Commonwealth’s attempt to amend the information

under an accomplice liability theory, but argues that the trial court did not

have the authority to permit the amendment under a conspiracy theory. Id.

at 17.

         In support of his position, Odem relies upon Commonwealth v.

Donaldson, 488 A.2d 639 (Pa. Super. 1985), wherein this Court held that a

“trial court was without authority to sua sponte add a charge to the

information.”      Id. at 641 (italicization omitted).   In Donaldson, the

defendant was arrested based on a complaint filed by police that alleged he

“intentionally, knowingly and recklessly cause[d] bodily injury … under

circumstances manifesting extreme indifference to the value of human life”

when he shot an individual in the back with a rifle.       Id.   Following the

preliminary hearing, the Commonwealth filed a criminal information charging

the defendant with felony aggravated assault under 18 Pa.C.S.A. §

2702(a)(1).      Id. at 641.     The defendant moved to quash the felony

aggravated assault charge from the information, claiming that “the initial

police complaint and preliminary hearing did not cover the charge of felony

Aggravated Assault.”      Id.   The trial court agreed with the defendant and



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amended the information sua sponte to include misdemeanor aggravated

assault under 18 Pa.C.S.A. § 2702(a)(4).              Id.   The Commonwealth

appealed.

      On appeal, this Court concluded that “the charge of Aggravated

Assault under 18 Pa.C.S.[A.] § 2702(a)(4) was improperly added to the

Information.” Id. at 642. The Donaldson Court found that “[b]y adding,

on its own motion, the misdemeanor count to the Information, the [trial]

court removed from the district attorney the opportunity to fully review this

new charge that would have been included on the Information above the

district attorney’s signature” and thus, the district attorney would not have

had the opportunity to make a “reasoned evaluation of the propriety of

initiating   criminal   proceedings   against   the   defendant.”   Id.   (citing

Commonwealth v. Williams, 470 A.2d 1376, 1380 (Pa. Super. 1984) (“the

signature requirement ‘is to assure the authenticity of an information and to

guarantee that the district attorney has inquired fully into all facts and

circumstances attendant to a particular case and has made a reasoned

evaluation of the propriety of initiating criminal proceedings against

defendant.’”) (emphasis in original)).

      Unlike the trial court in Donaldson, however, the trial court in this

case did not add the charges of aggravated assault on the amended

information sua sponte, but rather, included the offenses based on the

Commonwealth’s motion.         The Commonwealth’s motion to include the



                                       -9-
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charges of aggravated assault demonstrated its intent to hold Odem

responsible for the substantive crimes committed by Rain in furtherance of

the conspiracy. The Commonwealth’s motion was grounded on an improper

theory, however, as Odem was never charged under a theory of accomplice

liability. The trial court’s actions in this instance (permitting the amendment

based on conspiracy theory rather than accomplice liability) did not remove

from the Commonwealth the opportunity to make “a reasoned evaluation of

the propriety of initiating criminal proceedings against [Odem].”           See

Donaldson, 488 A.2d at 642.           Instead, the trial court permitted the

Commonwealth to amend the information to include the substantive offenses

that they requested, albeit based upon a different theory of liability than the

one proffered by the Commonwealth, to accomplish its goal of holding Odem

responsible for the actions of his co-conspirator. The Commonwealth did not

object to the different theory of liability, evidencing its continued approval of

the propriety of the amendments.         Thus, Donaldson does not support

Odem’s argument in this case.       Odem is not entitled to relief on his first

issue.

         For his second issue on appeal, Odem argues that the trial court erred

by failing to dismiss the case against him when the Commonwealth failed to

produce a video recording from the several video cameras installed

throughout the city that allegedly captured the incident. Odem’s Brief at 24-

28.   The record reflects that at the preliminary hearing, Sergeant Rubano



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testified that a video camera captured an individual “running across the

apartment buildings and then out of sight and then up this way to Fruit

Avenue.”     N.T., 10/24/13, at 42-43.   Sergeant Rubano further stated that

the video needed to be enhanced and that he could not say whether the

person in the video was the driver, the passenger, or anyone in the vehicle.

Id. at 43.

      During pre-trial discovery, Odem requested that the Commonwealth

disclose the video recording that Sergeant Rubano referenced during the

preliminary hearing. On March 10, 2014, the trial court entered an order,

directing the Commonwealth to “notify [Odem] on or before March 31st,

2014, whether or not there is a video depicting where the incident took place

and if it shows [Odem’s] vehicle.” Trial Court Order, 3/10/14, at 1-2. The

Commonwealth failed to comply.       On April 8, 2014, in response to the

Commonwealth’s failure to comply with the trial court’s March 10, 2014

order, Odem filed a motion to compel discovery.       The trial court granted

Odem’s motion to compel on April 9, 2014 and ordered as follows: “The

Commonwealth shall this date make available to the defense the video

surveillance capturing a portion of the alleged incident[.]” Trial Court Order,

4/9/14, at 1. The Commonwealth failed to comply with the trial court’s April

9, 2014 order to produce the video recording.           Furthermore, despite

Sergeant Rubano's testimony at the preliminary hearing, the Commonwealth

informed Odem prior to trial that there was no video of the incident.



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      When questioned at trial regarding the video he previously referenced,

Sergeant Rubano waivered in his testimony, initially stating that he did not

believe that he ever saw the video Odem and his counsel were requesting.

N.T., 9/16/13, at 69-70.        Sergeant Rubano then changed course and

testified that he recalled testifying at the preliminary hearing that he saw the

video, but that the video was of no value because no one could be identified

from the video.    Id. at 70.    The Commonwealth thereafter attempted to

introduce testimony explaining that the video recording did not exist

because the police department did not preserve it since it was of no value.

Id. at 70.    The trial court precluded the Commonwealth from introducing

this testimony, however, as a sanction for failing to produce the video

recording during pre-trial discovery. Id.

      On appeal, Odem asserts that the video recording would have affected

the outcome of the trial and thus, the Commonwealth violated the principles

of Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce the video

recording, requiring dismissal of charges against him. Odem’s Brief at 27-

28. In Brady, the United States Supreme Court held that “suppression by

the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady, 373

U.S. at 87.    In order to establish that the Commonwealth committed a

Brady violation, the defense must demonstrate that: (1) the evidence was



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J-S48022-15


suppressed by the Commonwealth, either willfully or inadvertently; (2) the

evidence was favorable to the defendant; and (3) the evidence was material,

in that its omission resulted in prejudice to the defendant. Commonwealth

v. Antidormi, 84 A.3d 736, 747 (Pa. Super. 2014) (citing Commonwealth

v. Haskins, 60 A.3d 538, 545 (Pa. Super. 2012)).

     Here, it is undisputed that the Commonwealth failed to produce the

video recording. Odem contends that the evidence from the video recording

was favorable and material to his defense, as it “would have completely

undermined the victim’s credibility and support[ed] [Odem’s] theory of the

case that the vehicle never stopped, the codefendant never exited and

pursued the victim and that [Odem] never acted in concert by waiting for

the codefendant.” Odem’s Brief at 26-27.       Despite Odem’s assertions,

however, we are unable to make a determination of the favorability or

materiality of the evidence since the contents of the video recording are

unknown and will remain unknown given the Commonwealth’s failure to

preserve the video.

     In these instances, where the evidence was destroyed before the

defense had the opportunity to examine the evidence and is therefore, only

potentially useful, Brady does not govern our determination of whether or

not a due process violation occurred.      Instead, evidence that is only

potentially useful constitutes a separate category of evidence to which a

defendant has constitutionally guaranteed access under the Due Process



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Clause of the Fourteenth Amendment. Commonwealth v. Chamberlain,

30 A.3d 381, 402 (Pa. 2011). In these cases, a determination of whether a

due process violation has occurred is governed by Arizona v. Youngblood,

488 U.S. 51 (1988). Commonwealth v. Feese, 79 A.3d 1101, 1109 (Pa.

Super. 2013).

     In Youngblood, the defendant was convicted of child molestation,

sexual assault, and kidnaping.   Youngblood, 488 U.S. at 52.      The police

improperly preserved the blood, saliva, and semen samples that were

collected from the victim and his clothing. Id. at 52-54. Thus, the samples,

when subjected to testing, provided inconclusive results. Id. at 54-55.

     After being convicted based on the victim’s identification of the

defendant as the perpetrator, the defendant filed an appeal to the United

States Supreme Court, asking the high court to determine whether the

omission of evidence that was destroyed by the state, which had the

potential to exonerate him, deprived the defendant of a fair trial.       The

Youngblood Court held:

              The Due Process Clause of the Fourteenth
           Amendment, as interpreted in Brady, makes the
           good or bad faith of the State irrelevant when the
           State fails to disclose to the defendant material
           exculpatory evidence. But we think the Due Process
           Clause requires a different result when we deal with
           the failure of the State to preserve evidentiary
           material of which no more can be said than that it
           could have been subjected to tests, the results of
           which might have exonerated the defendant.




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Id. at 57.    Thus, the Supreme Court concluded that “unless a criminal

defendant can show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due process of

law.” Id. at 58.

      In this case, Odem failed to present any evidence or argument

relevant to Youngblood to establish that the police acted in bad faith.

Instead, Odem focused his argument that the Commonwealth’s failure to

produce the video recording requires dismissal of the charges against him on

establishing a Brady violation.   As Brady is not the proper inquiry in this

instance, we conclude that Odem has not preserved the proper argument for

appeal, and his claim is accordingly waived. See Commonwealth v. Rush,

959 A.2d 945, 949 (Pa. Super. 2008) (“[F]or any claim that was required to

be preserved, this Court cannot review a legal theory in support of that claim

unless that particular legal theory was presented to the trial court.”);

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). Whether counsel provided

ineffective assistance by failing to preserve the Youngblood issue for

appeal may be raised, if appropriate, on collateral review.

      For his final two issues on appeal, Odem challenges the trial court’s

jury instructions. Our standard of review provides that

             [w]hen reviewing a challenge to part of a jury
             instruction, we must review the jury charge as a
             whole to determine if it is fair and complete. A trial



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            court has wide discretion in phrasing its jury
            instructions, and can choose its own words as long
            as the law is clearly, adequately, and accurately
            presented to the jury for its consideration. The trial
            court commits an abuse of discretion only when
            there is an inaccurate statement of the law.

Commonwealth v. Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (quoting

Commonwealth v. Einhorn, 911 A.2d 960 (Pa. Super. 2006)).

      Odem first asserts that the trial court erred by failing to instruct the

jury that a negative inference could be drawn from the Commonwealth’s

failure to provide the video surveillance of the incident. Odem’s Brief at 18.

After our review of the record, however, we conclude that Odem failed to

preserve this issue for appeal.

      It is well settled that

            [a] specific and timely objection must be made to
            preserve a challenge to a particular jury instruction.
            Failure to do so results in waiver. Generally, a
            defendant waives subsequent challenges to the
            propriety of the jury charge on appeal if he responds
            in the negative when the court asks whether
            additions or corrections to a jury charge are
            necessary.

Commonwealth v. Charleston, 16 A.3d 505, 527-28 (Pa. Super. 2011)

(quoting Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010)).

      In this case, the record reflects that the trial court denied Odem’s

request for a negative inference instruction.

            DEFENSE COUNSEL: What about an adverse
            inference for the videotapes that they had in their




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              possession and didn’t -- I believe that’s 4 -- there is
              a section for adverse inference.

              THE COURT: I’m not going to give that one. No.
              They are saying there is nothing on there to show
              that your client did it, so there is nothing in there to
              show that he’s done it and he’s guilty of this.

N.T., 9/18/14, at 92-93. Odem did not lodge an objection to the trial court’s

ruling. After the jury was given its instructions, the trial court asked defense

counsel whether he had any additions or corrections, to which counsel

responded, “No additions or corrections, just exceptions.”           Id. at 122.

Defense counsel presented one exception, which did not relate to the

negative inference instruction. Accordingly, pursuant to Rule 647(B) of the

Pennsylvania Rules of Criminal Procedure, this issue was not preserved for

appellate review.     Pa.R.Crim.P. 647(B) (“No portions of the charge nor

omissions from the charge may be assigned as error, unless specific

objections are made thereto before the jury retires to deliberate.”); see

also Pa.R.A.P. 302(b) (“A general exception to the charge to the jury will

not preserve an issue for appeal. Specific exception shall be taken to the

language or omission complained of.”).

      Second, Odem assails the trial court’s jury instruction regarding

conspiracy.    Odem’s Brief at 28-31.     Odem contends that the trial court’s

instruction was prejudicial in this case because it “instructed the jury that it

could infer [Odem’s] guilt by his mere presence at the scene[.]” Id. at 29-




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30.   Odem specifically challenges the following portion of the trial court’s

instruction:

                  Now, you cannot infer from the fact that he was
               present when the crime was committed that he was
               part of the conspiracy. You must look at all the
               other factors. So him just sitting in the car when it
               happens, that alone does not promote conspiracy.
               But if you find that he did other things, such as
               drove there, such as assisted him in having the
               crime committed, that goes beyond mere presence.

N.T., 9/18/14, at 117-18.

      On appeal, Odem asserts that “[t]he only reason [he] was present at

the scene of the crime was because he was driving with [] Rain at the time

the incident occurred.” Odem’s Brief at 29. Odem argues that since the trial

court instructed the jury that driving to the scene goes beyond mere

presence and is sufficient evidence to infer the existence of a conspiracy,

and since “[t]he only evidence presented by the Commonwealth to prove

that [Odem] conspired with [] Rain to shoot the victim was that [Odem] was

driving his vehicle at the time [] Rain fired the weapon[,]” the trial court

“explicitly informed the jury that it could infer guilt from [his] mere presence

as the driver of a vehicle[.]” Id. at 29-30. Thus, Odem asserts that the trial

court’s instruction “foreclosed any possibility of the jury returning a verdict




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in [his] favor” and accordingly, was prejudicial.      Id. at 29, 31.     After

reviewing the record, we disagree.4

      Although Odem contests the accuracy of the trial court’s statement of

the law (that driving to the scene constitutes more than mere presence and

is sufficient evidence to infer a conspiracy), we conclude that the trial court

did not err. This Court previously concluded that “[t]he driver of a getaway

car can be found guilty as a co-conspirator if it is reasonable to infer that he

was aware of the actual perpetrator’s intention.”         Commonwealth v.

Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001).

      In Davalos, the appellant was driving his car with his friend as a

passenger. Id. at 1192. The appellant, after driving by a bar five times,



4
  Contrary to the trial court’s determination that Odem waived this issue for
appeal, see Trial Court Opinion, 1/16/15, at 4, our review of the record
reveals that Odem preserved this issue. After the jury heard instructions,
defense counsel offered an exception to the trial court’s instructions with
regard to conspiracy, stating:

               My exception is when you talked about being
            present. The Court indicated essentially that if you
            drove them there, you did more, so the Court is
            basically saying the fact that he drove. Mr. Rain is in
            the car. That’s more than simply being present. I
            don’t think that’s an accurate basis of the law.
            That’s my exception.

N.T., 9/18/14, at 122-23. As this exception noted the specific language
complained of, we conclude that Odem preserved the issue.             See
Charleston, 16 A.3d at 527-28; see also Pa.R.A.P. 302(b) (“A general
exception to the charge to the jury will not preserve an issue for appeal.
Specific exception shall be taken to the language or omission complained
of.”).


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“stopped his car and lowered the passenger window” at which time, his

passenger fired eight gun shots at a group of four men. Id. The appellant

was charged with and convicted of two counts of aggravated assault and

criminal conspiracy.    Id.   The appellant filed an appeal contesting the

sufficiency of the evidence to establish that he was involved in a criminal

conspiracy with the passenger. Id. at 1193.

     The Davalos Court held that “a conspiracy may be proven inferentially

by showing the relation, conduct, or circumstances of the parties, and the

overt acts of alleged co-conspirators are competent as proof that a criminal

confederation has in fact been formed.”      Id.   The Davalos Court further

provided that “[t]he presence of such circumstances may furnish a web of

evidence linking an accused to an alleged conspiracy beyond a reasonable

doubt when viewed in conjunction with each other and in the context in

which they occurred.”    Id. (quoting Commonwealth v. Swerdlow, 636

A.2d 1173, 1177 (Pa. Super. 1994)). Thus, the Davalos Court determined

that the jury “could have reasonably adduced that [the] [a]ppellant not only

agreed to, but did, aid the shooter in the commission of his act” since he

“drove the shooter to the bar … sped away with the shooter, changed cars

and evaded the police for two hours before being arrested.” Id. at 1194.

     In this case, the trial court instructed the jury that the Commonwealth

was attempting to prove a conspiracy by circumstantial evidence.         N.T.,

9/18/14, at 116-17.     The trial court thereafter instructed the jury that it



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must “look at all other factors” beyond Odem’s mere presence at the scene

and suggested that finding that Odem drove to the scene or “that he did

other things” constituted more than mere presence to infer that Odem was

part of a conspiracy with Rain. Id. at 117-18. We find no error in these

instructions. Accordingly, Odem is not entitled to relief on his final issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2015




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