J-S45029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KAHYAN HARRIS

                            Appellant                No. 1897 EDA 2013


          Appeal from the Judgment of Sentence of January 28, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0015135-2009


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 23, 2014

       Kahyan Harris appeals his December 13, 2011 judgment of sentence,

following his convictions for second-degree murder, robbery, criminal
                                                                  1
                                                                      In relevant

part, Harris challenges the weight and sufficiency of the evidence presented

at trial by the Commonwealth, and Harris also claims that the trial court

erred in admitting unfairly prejudicial evidence. We affirm.

       In its opinion issued pursuant to Pa.R.A.P. 1925(b), the trial court

summarized the factual and procedural history of this case as follows:


____________________________________________


*
       Former Justice specially assigned to the Superior Court.
1
       18 Pa.C.S. §§ 2502(b), 3701, 903, and 907, respectively.
J-S45029-14


     The evidence admitted at trial established that on March 25,

     with a .38/.357 caliber weapon. [The Decedent] was found lying
     face down on the 4500 block of N. 19th Street in Philadelphia by

     Sakinah Davis.

     Thomas James Upshaw, III, testified that he knew [the
     Decedent] for approximately [thirty] years. Mr. Upshaw helped
     the [D]ecedent run his barbershop and also sold small quantities
     of drugs for him. Mr. Upshaw stated that he knew that there
     were drugs stored at 4530 N. 19th Street, but he was unaware
     of the quantity or where they were kept.

     On March 25, 2009, Mr. Upshaw and the [D]ecedent were
     closing up the barbershop and went to 4530 N. 19th Street to
     get supplies. The [D]ecedent kept the supplies at the house,
     because they would go missing when kept at the barbershop.
     The [D]ecedent went upstairs to use the bathroom. Mr. Upshaw
     heard the phone ring and then the toilet flush. There was a


     two males wearing black hoodies and jeans tried to push their
     way into the house. Mr. Upshaw tried closing the door but was
     unable to shut the door fast enough. The two males entered the
     house.

     The first male (later identified as Brandon Huggins) put a gun in
     Mr. Ups


     [Harris], pushed him to the side and ran out of the front door;
     [Harris] ran after him.2 After they both ran out of the house,

     Upshaw heard three (3) gunshots from outside; he heard a

     Huggins] did not fire. He he

     ran out of the house. Once outside, Mr. Upshaw saw the
     [D]ecedent on the ground; Sakinah was standing over him.
     When the police arrived, Mr. Upshaw gave an officer a
     description of the two men.




                                    -2-
J-S45029-14


        2
            During the tussle between the [D]ecedent and [Harris,

        was able to get a good look at his face and neck.

     Mr. Upshaw testified that he did not [initially] recognize either of
     the males. Once home, he remembered tattoos containing

     his statement to the police on the night of the shooting, Mr.
     Upshaw did not mention any tattoos because he stated that his
     thoughts were not exactly clear at the time. He did talk to the

     gave him a description of the two men and of the tattoos; he
     told Thomas one tattoo appeared to be a tear drop [sic] under
     the eye. Mr. Upshaw stated that he identified [Harris] because
     of his facial hair and the tattoo and that he had observed

     identified [Huggins] as the person who held a gun in his face.
     All identifications were based on facial features, a beard and a
     tattoo; Mr. Upshaw stated that he remembered [Harris].

                                *     *     *

     [Harris] was arrested . . . on June 9, 2009.

                                                     -7 (footnotes, citations

omitted).

     On December 13, 2011, after a jury trial, [Harris] was found
     guilty of murder of the second degree, robbery, criminal
     conspiracy, and PIC. On January 28, 2013, for the conviction of
     murder of the second degree[, Harris] was sentenced to life
     imprisonment without parole. Concurrent terms of [ten] to
     [twenty] years of imprisonment were imposed on the convictions
     of robbery and criminal conspiracy. No further penalty was
     imposed on the conviction of PIC.1
        1
            Prior to sentencing, [Harris] entered pleas of guilty to
        murder of the third degree, criminal conspiracy, and PIC
        on bill of information CP-51-CR-0011046-2009.           The
        Commonwealth and [Harris] negotiated a concurrent
        sentence of [twenty] to [forty] years of incarceration. On
        bills of information CP-51-CR-0008171-2009 and CP-51-
        CR-0002180-2010, [Harris] entered pleas of guilty to [two]


                                    -3-
J-S45029-14


            counts each of robbery and criminal conspiracy.        The
            Commonwealth and [Harris] negotiated a concurrent
            sentence of [ten] to [twenty] years of incarceration. On
            bill of information CP-51-CR-0005102-2012, [Harris]
            entered pleas of guilty to aggravated assault and PIC. The
            Commonwealth and [Harris] negotiated a concurrent
            sentence of [five] to [ten] years of incarceration. These
                                                          .

Id. at 1-2.

         On February 6, 2013, Harris filed a timely post-sentence motion

challenging the weight of the evidence.        On May 31, 2013, the trial court



timely notice of appeal. On June 26, 2013, the trial court directed Harris to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).       On July 13, 2013, Harris timely complied.      On August

30, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

         Harris raises the following three issues for our consideration:

   I.       Is [Harris] entitled to an arrest of judgment on the charge of
            [m]urder in the [s]econd degree and all related charges
            where the evidence is insufficient to sustain the verdict?

   II.      Is [Harris] entitled to a new trial as the verdict is not
            supported by the greater weight of the evidence?

   III.     Is [Harris] entitled to a new trial where the court admitted
            irrelevant evidence which was unfairly prejudicial to [Harris]
            in the form of a letter allegedly written by him but where the
            letter itself was not relevant to any issue or if relevant, should
            have been precluded by Rule 403?

Brief for Harris at 3.

         Harris first challenges the sufficiency of the evidence offered at trial to

prove him guilty of robbery, and, by extension, second-degree murder.

                                         -4-
J-S45029-14




there was ever a robbery. In that there was no robbery, and in that there

was no other predicate felony, there can be no basis for a finding of Murder

                         Id. at 7. We disagree.

      When examining a challenge to the sufficiency of evidence, our legal

standard of review is well-established:

      The standard we apply . . . is whether viewing all the evidence
      admitted at trial in the light most favorable to the verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      [the above] test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.           Any doubts
                                                                    -finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120-

person is guilty of robbery if, in the course of committing a theft, he

threatens another with or intentionally puts him in fear of immediate serious



constitutes murder of the second degree when it is committed while


                                      -5-
J-S45029-14



defendant was engaged as a principal or an accomplice in the perpetration of




commit, or flight after committing, or attempting to commit robbery, rape,

or deviate sexual intercourse by force or threat of force, arson, burglary or



     With specific regard to sufficiency of the evidence in the context of

robbery, this Court has held              not an essential element of robbery

that there be a completed theft. It is enough that force was used during an

                    Commonwealth v. Lloyd, 545 A.2d 890, 892 (Pa.

Super. 1988) (emphasis added). Furthermore, we have stated the following

with regard to what must be proved to sustain a robbery conviction:

     The Commonwealth need not prove a verbal utterance or threat
     to sustain a conviction under subsection 3701(a)(1)(ii). It is
     sufficient if the evidence demonstrates aggressive actions that

     3701(a)(1)(ii), the proper focus is on the nature of the trheat
     posed by an assailant and whether he reasonably placed a victim
                                                        threat posed by
     the appearance of a firearm is calculated to inflict fear or deadly

     entitled to infer that a victim was in mortal fear when a
     defendant visibly brandished a firearm.

Commonwealth v. Alford, 880 A.2d 666, 676 (Pa. Super. 2005) (quoting

Commonwealth v. Hopkins, 747 A.2d 910, 914-15 (Pa. Super. 2000)).

     In relevant part, Harris argues that the Commonwealth did not prove

that he acted with the requisite specific intent to commit a robbery. Harris



                                    -6-
J-S45029-14




                                                           2
                                                               there is only talk

about going into the house and a subsequent shooting; there is no talk

about an agreement to a robbery or the actual commission of a robbery or




claims that the testimony indicates that Harris possessed no specific intent

to commit a robbery. However, in the portion of the testimony relied upon



pertinent part, as follows:

       I was walking around the neighborhood and I saw [Harris]. He
       told me to go with him. [Harris] said, we about to get money. I


                                                           s, but [Harris]
       was driving. Then [Harris] drove to the block where we went
       into the house, and [Harris] parked the car. Then [Harris] gave
       me a little gun while we were still in the car and he told me to
       put a hoody on too. Then we walked down to a house in the
       middle of the block and [Harris] knocked on the door. A little
       man answered the door, and [Harris] told me to grab him.
       [Harris] saw the other guy in the back and [Harris] went after
       him, and [the other guy] gave [Harris] a little tussle. Then the
       guy tried to run out the door, and [Harris] shot him down.




____________________________________________


2
      Although Harris claims that this testimony is from Marks, the
testimony at trial regarding the conspiracy, or alleged lack thereof, that is
referenced by Harris is from Huggins. See Brief for Harris at 9.



                                           -7-
J-S45029-14



Notes of Testimony                                                 -74.   When

asked if this was an accurate description of the events that transpired,

                                                Id.



robbery seems much more like wishful interpretation than an objective

reading of the transcript in question.

                                                 on of events clearly indicates

that Harris manifested a clear intent to commit robbery. According to the



obtaining money from an undisclosed source. After Huggins agreed to aid

Harris, he provided Huggins with a weapon and a disguise.           Harris and

Huggins then forced their way inside of the home of the Decedent and




upon forcibly entering the house.        See Notes of Testimony



possessed the specific intent to commit robbery, specifically in his

statements and actions that demonstrate the intent to obtain money through

the use of force.   See N.T. Trial II at 74-



attempted to flee rather than comply with Har                  See N.T. Trial I

at 88-91; N.T. Trial II at 74-75.         Harris, in turn, shot and killed the

Decedent. Id.

                                     -8-
J-S45029-14



        This   testimony,   viewed   in    the   light   most   favorable   to   the

Commonwealth as verdict-winner, is sufficient to establish that Harris

committed robbery.      Specifically, Harris, with the aid of Huggins, forcibly

entered the home of Upshaw and the Decedent and threatened them with

guns while demanding money.           As our precedents indicate, the visible

brandishing of a firearm is sufficient to establish that the victims were put in

                                                                            Alford,

supra



formulated a plan prior to arriving at the home of Upshaw and the Decedent.




for felony murder, see 18 Pa.C.S. §§ 2502(b), (d), is without merit.

        In his second claim, Harris challenges the weight of the evidence. In

reviewing whether the trial court erred in ruling that the verdict was not



exercise of discretion, not the underlying question whether the verdict is

                                           Commonwealth v. Smith, 985 A.2d

886, 897 (Pa. 2009) (quoting Commonwealth v. Diggs, 949 A.2d 873, 879

(Pa. 2008)). The jury is free to believe all, part, or none of the evidence,

and an appellate court will not make its own assessment of the credibility of

the evidence. Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011).

                                                                      verdict is so

                                          -9-
J-S45029-14



                                                                 Id. (quoting

Diggs, 949 A.2d at 879-

refusal to do so when we find that it reflected an abuse of discretion for the

trial court not to conclude that the verdict was so contrary to the evidence




                               Id.

      Harris has recited the proper standard of review for a challenge to the

weight of the evidence. Harris has even offered an on-point citation to this

                   Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super.

2003), elucidating the distinction between challenges to the weight of the

evidence and challenges to the sufficiency of the evidence:

      The distinction between a claim challenging the sufficiency of
      evidence and a claim challenging the weight of evidence is
      critical. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
      2000). A motion for a new trial on the grounds that the verdict
      is contrary to the weight of the evidence concedes that there
      is sufficient evidence to sustain the verdict but claims that
                                                     are so clearly of
      greater weight that to ignore them or to give them equal weight
                                              Id. at 751-52 (internal
      citations omitted). A claim challenging the sufficiency of the
      evidence, however, asserts that there is insufficient evidence to
      support at least one material element of the crime for which [an
      appellant] has been convicted. Id.

Lyons, 833 A.2d at 258 (emphasis added); see Brief for Harris at 11.

                                                                s substantive




                                     - 10 -
J-S45029-14



discussion regarding his challenge to the weight of the evidence continues

to press an argument that regards the sufficiency of the evidence:

       The Commonwealth came forward with no evidence that this was
       a [r]obbery. Thus, if one wants to assume that the jury found a
       robbery basing its decision no speculation, conjecture and
       surmise, to wit, why were [Harris and Huggins] there? that
       [sic] would be improper and not that basis for a verdict, or at
       least, it would not be the basis for claiming that the greater
       weight of the evidence supported the verdict.

Brief for Harris at 11.

       Although styling his second claim as a challenge to the weight of the

evidence, Harris continues to argue that the Commonwealth failed to adduce

sufficient evidence to establish that Harris committed a robbery.     Such a

claim properly is construed as a challenge to the sufficiency of the evidence.

See Lyons, supra. To the extent that Harris relies upon a challenge to the

weight of the evidence, and to the extent that he preserved that challenge in

a post-sentence motion,3 the trial court aptly addressed the issue in its Rule

1925(a) opinion:

       In the instant case, as previously stated, the Commonwealth

       The evidence showed that [Harris] and [Huggins] conspired to
       rob the [D]ecedent.      Thomas Upshaw positively identified
       [Harris] as the person he saw enter the house uninvited and
       tussle with the [D]ecedent. [Upshaw] saw the [D]ecedent break

____________________________________________


3
      Pa.R.Crim.P. 607(A) provides that an appellant wishing to assert a
challenge to the weight of the evidence must raise the issue with the trial
court in an oral or written motion prior to sentencing, or in an post-
sentencing motion. See Pa.R.Crim.P. 607(A)(1)-(3).



                                          - 11 -
J-S45029-14


     gunshots    following   his   seeing     [Harris]   running after the
                                                              entification of

     testimony, the verdict was not against the weight of the
     evidence.

T.C.O. at 13-

                                       Furthermore, nothing in our review of




abused its discretion by allowing the Commonwealth to present, through the

testimony of Detective Nathan Williams, portions of a letter . . . found by

police when executing a search warrant on a

14. Specifically, the letter in question was written by Harris and contained



                                                                          referred

                                                     Id. at 16-17. Harris argues



it should have been excluded from trial. Harris has waived this claim.

     Our standard of review in this context is well-settled.

     Admission of evidence is within the sound discretion of the trial
     court and will be reversed only upon a showing that the trial
     court clearly abused its discretion. Admissibility depends on
     relevance and probative value. Evidence is relevant if it logically
     tends to establish a material fact in the case, tends to make a
     fact at issue more or less probable or supports a reasonable
     inference or presumption regarding a material fact.


                                     - 12 -
J-S45029-14



      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill
      will, as shown by the evidence or the record, discretion is
      abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(citation omitted).



Harris has properly preserved this issue for our consideration.            The

Pennsylvania Rules of Evidence state the following with regard to preserving

challenges to the admission evidence before the trial court:

      Rule 103. Rulings on Evidence.

      (a) Preserving a Claim of Error. A party may claim error in
      a ruling to admit or exclude evidence only:

         (1)     if the ruling admits evidence, a party, on the
         record:

            (A) makes a timely objection, motion to strike, or
            motion in limine, and

            (B) states the specific ground, unless        it was
            apparent from the context

Pa.R.E. 103. This Court has further explained this requirement, as follows:


                                           Commonwealth v.
      Montalvo, 641 A.2d 1176, 1185 (Pa. Super. 1994) (citation

      the offer is made, assigning grounds, is a waiver upon appeal of


                                    - 13 -
J-S45029-14


     Commonwealth v. Bullock, 518 A.2d 824, 826 (Pa. Super.
     1986), alloc. denied, 531 A.2d 427 (Pa. 1987).

Commonwealth v. Griffin, 684 A.2d 589, 595 (Pa. Super. 1996).

     Instantly, the letter in question was admitted into evidence on

                                                                   See

Notes of Testimony                                               -130.



                                                    Griffin, supra; see

Pa.R.E. 103(a)(1)(A)-(B).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




                                 - 14 -
